Deal in murder case probed

A panel of three Nevada Supreme Court judges will decide if a deal struck between a convicted murderer and prosecutors should be overturned.

Demarlo Berry's appeal, presented by his attorney, Christopher Oram, centers on the constitutionality of a deal that allowed the court to accept a verdict from 11 jurors instead of 12 due to an 11-1 deadlock.

The defense and prosecution agreed to accept a verdict from the 11 jurors with the added stipulation that the state would not seek the death penalty against Berry if he was found guilty of murder.

"The question is whether this was a tactical decision or, is it a right that constitutionally can't be waived?" Justice Nancy Becker said during the hearing at the court's Las Vegas administrative office at 316 Bridger Ave.

Berry was convicted in 1995 of the slaying of a Carl's Jr. restaurant manager, but the verdict came only after Berry agreed to the unusual move of accepting a non-unanimous verdict rather than go through the trial process again.

After waiting five days for a jury to determine his fate, Berry told District Judge Bill Maupin, "I'm tired of the stress, I'm just ready to get it over with."

Charles Burke, 32, was found shot to death at the Carl's Jr. on the corner of Eastern Avenue and Charleston Boulevard after a robbery in April of 1994.

During Monday's hearing Oram argued that a decision has to be unanimous, and that a unanimous verdict by a jury is one constitutional right that never can be waived.

"It opens up Pandora's Box," Oram said. "If we're going to accept this, why not 10 to 2 or 9 to 3?"

Deputy District Attorney Gary Booker, who originally prosecuted Berry's case, cited Nevada Revised Statute 175.021. It states that, at anytime before a verdict, stipulations can be made to have the jury consist of between six and 12 members.

"Both sides agreed to this stipulation back then," Booker said. "Both parties agreed to accept the 11 jurors' verdict, and the state agreed not to seek the imposition of the death penalty. This was a tactical decision that the defense approached the state with."

The parties will now wait for an opinion from Vice Chief Justice Cliff Young, Justice Myron Leavitt and Justice Becker regarding the appeal.

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