Another judge alleged to have buried evidence as a D.A.

By: - June 6, 2019 5:45 am
here come da judge

Nevada District Judge Jim Shirley (official photo).

A Winnemucca man serving life without the possibility of parole says he takes responsibility for the murder that put him behind bars.

“I drove up there. I’m the reason we went to the tent,” Matt Hutchinson testified in March during proceedings he hopes will win him a chance at parole. “I’m the reason we went in. I’m the reason we confronted him. I’m responsible.”

But Hutchinson maintains he never touched the gun that killed George Moritz. The man who pulled the trigger, Hutchinson testified, is already free.

Hutchinson’s attorney, Kristina Wildeveld, says DNA evidence buried by the prosecutor, Jim Shirley, who is now a Nevada state district judge, indicates Hutchinson is telling the truth.

Shirley declined to comment, citing judicial rules.

Last week, Clark County Judge Douglas Herndon testified in a legislative hearing about a case in which he and then-fellow prosecutor William Kephart failed to produce evidence that would have cleared a man wrongfully prosecuted and convicted of murder.

Itching for a fight

“It wasn’t a good night.”

That’s how Nick Andrews, on the witness stand in March, described May 26, 2006, the evening George Moritz died from a single gunshot wound to the head.

Earlier that night, it had taken Winnemucca police just minutes, according to court records, to track down and pull over the purple Camaro reportedly involved in a drive-by shooting of a home.

Police immediately recognized Andrews, the passenger in the purple Camaro, as the teen son and stepson of local law enforcement officers. 

Andrews had fired shots at a young man’s car a week earlier and was already on probation for a previous offense, according to court documents.

But after smelling Andrews’ gun to determine if it had been fired, the Winnemucca police returned the weapon and let the teens go.

“By the way, at that time, Nick was intoxicated. He had been partying it up for hours,” Andrews’ attorney, Robert Dolan, told the Current. “So you have an intoxicated minor and these are police officers.”

Matt Hutchinson booking photo

The driver of the purple Camaro, Matt Hutchinson, was not drunk, but he was itching for a fight.

Hutchinson had attended an Alcoholics Anonymous meeting, met up with Nick Andrews and was looking to knock heads with Moritz, who Hutchinson believed had sexually abused his girlfriend.

Emboldened after getting away with the drive-by shooting, Hutchinson and Andrews drove two hours to Sonoma Canyon in Pershing County, south of Winnemucca, where Moritz was camping with friends.  

“When we got to the tent, I told him to come out and fight me,” Hutchinson testified at an evidentiary hearing in March of this year, under questioning by his attorney Kristina Wildeveld.

Hutchinson: I was punching him and I punched him for a while and then I heard, bam.

Q: What do you mean you heard, “bam”?

A: I heard — I heard the gun go off.

Q: Okay. Who had possession of the gun?

A: Nick.

Q: And then what happened?

A: And then I just — there was a really bad noise that was made and it freaked me out and I took off.

Q: Did you say anything before you took off?

A: I said, “Dude, you shot him.”

Andrews and Hutchinson were arrested within hours of the shooting.

They were taken to the Winnemucca jail, where Andrews’ stepfather was a police officer. There, protocols were ignored and any firearm residue that may have indicated the shooter’s identity was destroyed, according to police records.

“Despite the Pershing County Sheriff’s office request that both suspects be confined in the clothes they were arrested in and without the ability to wash; it appeared that both inmates had been allowed to shower and were dressed in inmate turnouts.” wrote Lt. Thom Bjerke of the Pershing County Sheriff’s office in case records.  

DNA evidence buried

Hutchinson was charged in June of 2006 with first degree murder and burglary for entering the tent. Andrews was charged with aiding and abetting Hutchinson. The complaint was amended in August 2006 to reflect either defendant may have committed the shooting.  Pershing County District Attorney Bryce Shields says he doesn’t know why the complaint was amended.

The judge who sentenced Hutchinson in 2007 to life in prison without the possibility of parole, justified the sentence by citing Hutchinson’s failure to take full responsibility for the murder of Moritz.  

“The Defendant attempted to hide and conceal the crime that he committed, including identifying another as the shooter,” Judge Richard Wagner wrote in his sentencing order.

Now, DNA evidence allegedly suppressed by the state appears to back up Hutchinson’s claims that the shooter was Andrews.

Forensic records received by then-prosecutor Jim Shirley in December of 2006 indicate DNA on the gun used to pistol whip and shoot Moritz, belonged to Andrews and Moritz, but not Hutchinson. Shirley used the DNA evidence against Andrews at trial in 2007.  

“A prosecutor maintains an ongoing ethical duty to turn over information with any exculpatory value to the Defense. That was never done in this case,” Wildeveld, who recently took on the case, wrote in a motion. “Matthew only acquired the DNA Forensic Report after his wife made a records request from the Department of Public Safety in December 2017.”

“I asked him (Shirley) when he received the DNA results and he couldn’t remember,” says Shields. Shields later confirmed the results were received on Dec. 4, 2006, eight days before Shirley — without any mention of the DNA results — entered into a plea deal with Hutchinson that would send the 18-year-old to prison for life.

Both Hutchinson’s trial and appeal attorneys have signed affidavits saying they never received the DNA evidence from Shirley.

Even the lead detective in the 2006 investigation said at the March hearing that he had no knowledge of the DNA tests.

Kristina Wildeveld: Detective, are you telling me that there was an item of evidence submitted that you are completely unaware of that was submitted on your behalf and you don’t know the results of?

Richard Brown: That’s what I’m telling you.

Wildeveld: In your case?

Brown: When you said DNA here today, I told the prosecutor I didn’t know anything about it.

“That was a big case. We didn’t get that many homicides in Pershing County,” says Carl “Chuck” Anderson, who was Hutchinson’s court-appointed public defender in 2006. “It does seem fishy that I wasn’t told of that report. More than a little bit suspicious. I have my ideas about what happened. But I have no proof.”

Anderson declined to elaborate on his theories.  

“Obviously if I had known about the DNA we wouldn’t have entered the plea,” Anderson said. “That was incredibly important.

“I would never think Jim Shirley would ever intentionally commit a Brady violation, says attorney Robert Dolan, who represented Nick Andrews in the murder case. “He’s a righteous and honest man.”  

A Brady violation occurs, according to the U.S. Supreme Court, when the government fails to disclose evidence materially favorable to the accused. The failure need not be intentional and the defense is under no obligation to request the evidence.

“Betrayed by the state”

In the United States, the vast majority (as high as 95 percent in state courts) of criminal cases are resolved via plea bargain.  Defendants commonly plead guilty to crimes they didn’t commit in exchange for the promise of a lesser sentence.

Hutchinson says he was railroaded by Anderson, his public defender, into a plea deal — promises of a lighter sentence and the possibility of parole, in exchange for admitting he shot Moritz and testifying against Andrews.

According to court documents, the State agreed to follow the recommendation of Parole and Probation that Hutchinson be eligible for parole after 20 years.

“Despite the agreed upon negotiations, the State presented 10 ‘victim’ impact speakers, not all of whom qualified as ‘victims’ under statute, and all testified as to why the Court should not follow the recommendations,” Wildeveld wrote in the motion to vacate Hutchinson’s conviction.

At sentencing, Hutchinson told the judge he fired the gun that killed Moritz.

“I told him that because I was told I was not allowed to be — to say I was innocent if I took the plea deal,” Hutchinson testified later.  

“My attorney told me it was my best option,” Hutchinson testified at Andrews’ trial.  “He told me he was friends with Mr. Shirley here and he’d give me 20 to 50. … He said testify against him (Andrews) to make him look guilty and you’ve got your 20 to 50.”

Anderson denies making any such promise to Hutchinson.

“I’m a little sick of this case. It’s been a long time and I’m retired,” he told the Current.

“At some point, when the government wanted his testimony, I would have presumed at sentencing he wouldn’t get the full weight of the charge,” Dolan, the attorney who represented Andrews, told the Current. “The government pressed their case and rolled over the lawyer. The defense lawyer failed to do his job in my opinion.””

“Chuck (Anderson) had been for a number of years, Jim Shirley’s chief deputy. His first murder case after leaving that position was Matt Hutchinson’s defense,” Dolan said. ”In my mind, I was very uncomfortable but it was not my fight. I can tell when a lawyer is vested in a client’s case. I felt defense counsel was asleep at the switch.”

Angry with the state for not keeping up its side of the bargain, Hutchinson says he decided to renege on his agreement to testify against Andrews at trial.

Instead, with a sentence of life in prison already imposed and seemingly nothing to lose, Hutchinson implicated himself as the shooter.  

“I lied under oath because I was angry and felt betrayed by the state,” he testified this year at a hearing on the motion to restore the possibility of parole to his stipulated sentence agreement.  

“Matt’s attorney retired the day Matt was sentenced. He walked out the door and never looked back,” says Wildeveld, who will ask the state in August to vacate the conviction or stick with the original deal promised to Hutchinson, which would afford him an opportunity for parole.  She’s also asking a judge to disqualify the Pershing County District Attorney’s office from further proceedings in the case.

Shields says regardless of the exculpatory evidence, by virtue if his participation, Hutchinson remains guilty of first degree murder, which is punishable by a minimum of 20 years in prison.

Plea agreements are generally subject to judicial approval.  

Assembly Bill 148, a measure designed to take the guesswork out of stipulated agreements between prosecutors and the defense by requiring judicial approval, died recently in the Nevada Legislature. It was sponsored by Assemblyman Ozzie Fumo, a criminal defense attorney.  

Andrews taking the Fifth

Nick Andrews, who served a brief sentence and is now living with his wife and children, testified in March at the hearing on a motion to reconsider Hutchinson’s sentence and restore the possibility of parole.

“You did not want to be here today, did you?” Wildeveld asked Andrews at a recent post-conviction hearing to re-open Hutchinson’s case.

Nickolas Andrews: I do not.

Q: Why is that?

A: Um, I am anticipating being questioned regarding criminal conduct that includes myself.

Q: Well, you were involved in an incident back in 2006, correct?

A: Um, I invoke my Fifth Amendment right not to incriminate myself.

Q: Well, you actually went to trial in 2006, right?

A: Yes.

Q: And you served time?

A: Yes.

Q: Right?

A: Yes.

Q: Can you tell me what you served time for?

A: I was — um, ultimately, when everything was said and done, I was convicted of burglary from a jury trial, voluntary manslaughter from an Alford plea, and discharging a firearm into an occupied structure and vehicle from an Alford plea.

(An Alford plea allows a defendant to avoid admitting guilt while agreeing he’d likely be convicted given the evidence.)

Q: Okay. And there was a weapon in the car. Do you know whose weapon it was?

A: Um, I invoke my Fifth Amendment right not to incriminate myself.

Q: At the drive-by shooting, who was the person who fired the weapon at the drive-by shooting?

A: I invoke my Fifth Amendment right not to incriminate myself.

Q: And Nick, it was your gun, wasn’t it?

A: I’m going to invoke my Fifth Amendment right not to incriminate myself.

Q: And you did the drive-by, didn’t you?

A: I’m going to invoke my Fifth Amendment right to not incriminate myself.

Q: And you did the shooting that night of George Moritz, didn’t you?

A: I’m going to invoke my Fifth Amendment right not to incriminate myself.

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Dana Gentry
Dana Gentry

Dana Gentry is a native Las Vegan and award-winning investigative journalist. She is a graduate of Bishop Gorman High School and holds a Bachelor's degree in Communications from the University of Nevada, Las Vegas.