Upholding one death sentence and tossing another, the Nevada Supreme Court on Wednesday attempted to define when a three-judge panel can and cannot impose the death penalty.
In Donte Johnson's case, he will get a new sentencing hearing before a newly empaneled jury because Nevada's law sending sentencing to a judicial tribunal when jurors can't agree is unconstitutional.
The basis for that decision is a U.S. Supreme Court ruling that says a judge cannot replace a jury in deciding whether aggravating circumstances justify a death sentence. That decision, like guilt or innocence, must be decided by a jury, according to the U.S. Supreme Court decision in Ring v. Arizona.
The Nevada Supreme Court unanimously agreed Wednesday the federal ruling invalidates the portion of Nevada's death sentence law which turns sentencing over to a judge when a jury can't decide.
Johnson was convicted of murdering four men in August 1998 in a case involving drugs and burglary. But the jury was unable to decide whether to impose a death sentence.
The three-judge panel had no such qualms and ordered him executed.
The court, in its unanimous opinion, said the question is simple: "After a jury is unable to agree on a sentence in a capital case, does the finding of aggravating circumstances and imposition of the death penalty by a three-judge panel violate the Sixth Amendment?"
"We agree it does," the opinion states.
The state high court agreed that in some sense, the aggravating circumstances already were proved during trial because they were elements of the criminal case. But, the opinion points out, the trial didn't include consideration of mitigating factors which could have shown a life sentence more appropriate. Those factors too, justices said, are up to a jury.
"We do know that at least one juror in this case did not agree that death was the proper sentence," the justices wrote. "Therefore, we cannot declare that the constitutional error that occurred was harmless beyond a reasonable doubt."
The court ordered Johnson receive a new penalty hearing before a new jury.
The case against Lawrence Colwell Jr., however, was different in the high court's eyes. Colwell was sentenced by a three-judge panel to die for murdering a 76-year-old man as part of a "trick roll" robbery.
But there was no jury trial in Colwell's case. He agreed to plead guilty on the condition that the state seek the death penalty and specifically agreed to sentencing by a judicial tribunal.
His lawyers filed to overturn the sentence after the Arizona decision, saying the same logic as Johnson's lawyers used should apply to Colwell. The court, however, said Colwell's case is different because he waived his right to a jury trial.
Finally, the court ordered a new sentencing for Wilbert Emory Leslie, sentenced to die in the killing of a convenience store clerk during a robbery. In the process, they voted tough new restrictions on one of the standard "aggravators" used by prosecutors to invoke Nevada's death penalty.
In a 4-3 decision, the majority -- justices Bob Rose, Bill Maupin, Myron Leavitt and Nancy Becker -- agreed the aggravator that the victim was killed "at random and without apparent motive" shouldn't apply in this case. They agreed that aggravator can't be used "when the sole basis for it is that the defendant unnecessarily killed someone in connection with a robbery."
The justices said the Legislature intended that aggravator to apply when a killer selects his victim without specific purpose or objective.
"An unnecessary killing in connection with a robbery does not always fit in this category," the opinion states.
Without that aggravator, the justices wrote, a new sentencing is needed because it's not clear a jury would have ordered death.
Maupin wrote separately to add that, in this case, that leaves only the felony aggravators of burglary and robbery, which are part of practically every murder-robbery case. He said with only the elements of burglary and robbery, he's not sure the case qualifies for a death sentence under Nevada law and urged the lawyers for both sides to raise that issue at the new sentencing.
The remaining three justices -- Miriam Shearing, Cliff Young and Deborah Agosti -- said they would have upheld the death sentence for Leslie. They said he had taken the money and could have left the store without killing the clerk, so the killing was indeed random and without apparent motive.
All three are Las Vegas murder cases.
