Judge chokes back tears testifying on imprisonment of innocent man

Clark County District Judge Doug Herndon is uniquely qualified to testify about a bill before state lawmakers designed to compensate people who are wrongfully convicted in Nevada.

Herndon’s daughter participated in researching the measure. But the judge’s qualifications go well beyond that connection.

“I was also a prosecutor who was involved in prosecuting a case in which a gentleman was convicted of murder who was later found to be factually innocent,” Herndon testified, choking back tears between words.  “And if you think that doesn’t weigh heavily on somebody, you’d be mistaken. I think that informs me everyday that I do my job currently about the failings that can occur through our justice system.”

As a prosecutor, Herndon and then-colleague William Kephart, also a judge today, withheld exculpatory evidence from the defense that would have proved the convicted man, Fred Steese, was not in Nevada at the time of the murder.

Herndon spent Memorial Day morning at the Grant Sawyer building in Las Vegas with other legal heavyweights supporting Assembly Bill 267, which would grant financial compensation to those wrongfully convicted.  A person wrongfully imprisoned for more than 20 years would be eligible to receive $100,000 for each year behind bars.  

“We can’t solve all the world’s problems but we can’t abandon them either. There’s never, ever a wrong time to do the right thing by people,” Herndon told members of the Senate Committee on the Judiciary, chaired by Senate Majority Leader Nicole Cannizzaro, a prosecutor who appears in Herndon’s court.  

Cannizzaro left the hearing during testimony from Herndon and Nevada Supreme Court Justice Kris Pickering, who publicly apologized to DeMarlo Berry, released after 23 years in prison for a murder he did not commit.  

Cannizzaro did not respond to the Current’s inquiry as to why she left the hearing.  

DeMarlo testified he was released by the state after 23 years “in the middle of the city” with a debit card and nothing more.  

Pickering, who played no role in Berry‘s conviction, but agreed as a member of the Supreme Court to remand Berry’s case on appeal to District Court, apologized to the man who lost 23 years of his life confined for a murder he didn’t commit.  

“I have never met Mr. Berry face to face, but I want to extend my apologies to him and my congratulations to the extraordinary grace and dignity with which he fought this wrongful conviction. He said the same thing from start to finish,” Pickering testified.  

“It took Mr. Berry 22 years from the date of his conviction to getting a reversal for an evidentiary hearing on Christmas Eve in 2015,” Pickering noted, encouraging lawmakers to provide a simple and straightforward means for those wrongfully convicted to seek compensation.  

Cannizzaro and state Sen. Melanie Schiebel, also a prosecutor, favor an amendment offered by the Nevada District Attorneys Association that would require individuals to prove their innocence by “clear and convincing evidence,” a higher standard than the “preponderance of evidence” standard included in the bill.  

But Pickering urged lawmakers to pass the measure as written. “I’m here as a person, not on behalf of the court system,” Pickering testified.  “I feel deeply and sincerely and passionately, that ours, while it is the best and most elegant dispute resolution system in the world and one of the finest, when it makes a mistake we need to step up and we need to do what we can as human beings to expedite reparations for those wrongs.”

“I cannot imagine to have my freedom, my liberty, taken from me for 23 years as Mr. Berry’s was.  He and others in his position are entitled to reparations from the state and more than a drop off in North Las Vegas,” Pickering said.

Attorney Lisa Rasmussen noted the other option for wrongfully convicted individuals is to seek reparation via a federal civil rights suit.

“The burden of proof is the preponderance of the evidence,” Rasmussen said. “There’s no reason to make it higher in this bill than it is in that context.”

“This whole story has been exceptionally disturbing to me on a variety of levels,” Sen. Ira Hansen (R-Sparks), a co-sponsor of the bill, told his colleagues on the committee. “When we do blow it and we do rarely, when we do make a mistake, the idea that we treat a guy like that after 23 years, there’s something really wrong with that.”

Hansen said in addition to the provisions of the bill, the state should be required to provide people who are wrongfully convicted with proof to present to law enforcement, prospective employers and others.

“If you’d walked into my office and said ‘I want to get a job with you.’ And if you were to tell me well, I was found not guilty of a murder but I did spend 23 years there (in prison), the likelihood of an employer believing you is very minimal.”

Nancy Lemke, a public defender who represented Fred Steese, who spent more than two decades in prison for a murder in which he played no part, says supporting Steese’s needs post-release fell to her and attorneys Lisa Rasmussen, who assisted in his appeal and allowed him to wash at her office, and defense attorney Kristina Wildeveld, who let Seese stay in a casita attached to her downtown Las Vegas office.

Because he was released from prison with no resources, all three attorneys gave Steese money, Lemke said.  

Attorney General Aaron Ford testified in favor of the measure and said establishing conviction integrity units statewide, such as the Clark County unit that resulted in Berry’s exoneration, has been a priority since his first session as a lawmaker.  

“I was a freshman and didn’t understand money ruled everything around here in some instances,” Ford said.    

“It’s an attempt to try to do something right to someone to whom this state has done something wrong,” Ford said of the measure. “We have the greatest judicial system in the history of mankind, to be sure.  But it is fallible. I can make mistakes. And when we make mistakes, we have to be willing to stand up and correct those mistakes.”

“Our job is justice, and sometimes it manifests itself in rectifying and remedying a mistake,” Ford said.  

The committee took no action on the measure, which passed the Assembly unanimously.