They cut deals with defendants, witnesses and snitches. They can pile on charges and strong arm plea deals, sometimes based on false confessions.
America’s prosecutors hold inordinate power, abuse it regularly, yet have absolute immunity from being held accountable in civil court. Criminal charges are exceedingly rare. And the oversight agencies designed to police them are failing at an alarming rate.
Prosecutors were disciplined in less than two percent of 3,600 cases of misconduct between 1963 and 2013, according to the Center for Prosecutor Integrity.
“It’s almost unheard of,” U.S. Ninth Circuit Judge Alex Kozinski told The Huffington Post in 2016 of professional sanctions. In 2013, Kozinski wrote that prosecutorial misconduct had reached “epidemic” levels in the U.S.
But when a judge’s alleged misconduct in his previous life as a prosecutor comes to light, who takes charge?
In Nevada, no one is sure. The two agencies with a likely say, the Nevada Bar Association and the Judicial Discipline Commission, are at odds over who has jurisdiction.
“We don’t have any statute or case law that defines those boundaries for this situation,” says Nevada Bar Counsel Dan Hooge. “Once a lawyer becomes a judge we lose jurisdiction to the Nevada Commission on Judicial Discipline.”
But the Judicial Discipline Commission says it has no oversight of infractions committed by a judge while a prosecutor.
“The Commission only has jurisdiction over misconduct committed while serving as a judge. Therefore, the Commission could not pursue alleged infractions committed in a previous capacity,” an official with the Judicial Discipline Commission said in an email. “The State Bar of Nevada has jurisdiction over attorney misconduct.”
Hooge of the Nevada Bar points to the American Bar Association’s guidance:
“…even if the misconduct occurred prior to the judge’s assumption of office, the commission should have jurisdiction since the judge’s status as a judge is at issue.”
“So, I respectfully disagree with the Commission,” Hooge says. ”If I filed charges against a judge, I would get condemned by that judge and all others for overreaching.”
“With all due respect to Bar Counsel, the ABA is not the law in Nevada,” the Commission responded. “The Judicial Discipline Commission does not have jurisdiction over such matters by law.”
Judges in Nevada’s larger counties are required to be attorneys and maintain their legal licenses while on the bench, meaning the State Bar could take action against that license, thereby disqualifying him or her from further service as a judge.
“We are merely expressing opinions. But my opinion is that the Commission should act first. If the judge is removed, then we could act,” says Hooge of the Bar Association.
In the last several weeks, the Current has reported on three Nevada judges — William Kephart, Doug Herndon and Jim Shirley — who as prosecutors committed or are alleged to have engaged in misconduct.
In 1996, Kephart led the effort to put drifter Fred Steese behind bars for murder. Steese was later declared by a judge to be innocent and was released from prison after 22 years. The story has gained Kephart national exposure.
Kephart and his second-in-command at the time, Herndon, were alleged to have buried evidence proving Steese could not have committed the murder.
The Nevada Bar Association took no action, according to Hooge.
“I found nothing. It looks like the original events took place in 1992, the district court order in 2012, and the pardon in 2017,” Hooge wrote in an email. “Our records don’t go back to 1992, but we have no record of a complaint or judicial referral in 2012 or 2017. So, I don’t think the Bar ever reviewed the case. Even if we had, I believe Kephart was on the bench as a District Court Judge since 2015. This moved jurisdiction to the Commission in 2015.”
Kephart and Herndon are now Clark County District Court judges. Kephart did not respond to requests for comment on this story.
Last month, Herndon choked back tears recalling his role in the case.
“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,” Herndon testified at a legislative hearing on reparations for the wrongfully convicted.
“What level of misconduct renders them ineligible as a judge?” asks Dayvid Figler, a Las Vegas defense attorney.
“When do they pay any consequence for what they did in Steese? The answer is never, because who has standing to bring a complaint?” Figler asks. “It’s not a litigant. It’s not the Supreme Court. It’s not the State Bar. Who’s going to file a complaint?”
“The problem is the procedural and jurisdictional complexities of investigating and prosecuting a judge for conduct that occurred 25 years ago as a lawyer,” Hooge says.
Nevada has a four-year statute of limitations which severely restricts the State Bar’s ability to take action against wayward prosecutors, especially in so-called Brady cases, where prosecutors violate due process by failing to turn over evidence that is helpful to the defense and material to guilt or innocence.
“I’m not a big fan of it (the statute of limitations). The ABA recommends against it, too. But it’s what we have in Nevada,” Hooge says.
“That’s the problem with Brady,” says defense attorney Figler. “The infraction doesn’t come to light until two decades of federal litigation. Someone finds a file that’s been laying around.”
In 2001 the Nevada Supreme Court chastised then-Clark County Deputy District Attorney Kephart for his closing argument during a murder trial — the State of Nevada v. Charles Lee Randolph.
“If you have a gut feeling he’s guilty, he’s guilty based on the feeling, that feeling in your heart and mind after comparing and considering all the evidence is what is meant by abiding conviction and proof beyond a reasonable doubt,” Kephart told jurors.
“Any prosecutor reasonably knows that a ‘gut feeling’ of guilt is not certainty beyond a reasonable doubt and that such an assertion should never be made to a jury,” the Supreme Court wrote. “But it is apparent that some prosecutors are not taking to heart this Court’s admonishments not to supplement or rephrase the definition of reasonable doubt. … We are convinced that it has become necessary to take specific action to correct this problem, and we will therefore call the prosecutor to account in this case and in future cases where it may arise.”
In a motion, Kephart responded he was “professionally embarrassed by the court’s opinion” calling him out for his actions.
“I can insure this Court that the opinion in the Randolph cases and the consequences flowing therefrom have already had a great impact on me, to the point that I can assure the Court that there will not be a bona fide allegation of prosecutorial misconduct against me in the future.”
It was not the last time Kephart’s actions would be in question, as an attorney or a judge. In 2017 Kephart was censured by the Judicial Discipline Commission for breaching judicial rules by talking with a news crew about the retrial of Kristen Lobato, a woman Kephart prosecuted for murder. Lobato, who maintained her innocence and won new trials during 15 years in prison, was released when a judge dismissed the charges in late December 2017.
Jim Shirley is alleged to have buried DNA evidence that may have proved a Winnemucca man is serving life in prison without the possibility of parole for a shooting he didn’t commit, while his defense attorney alleges the man who likely pulled the trigger is free. Shirley, now a judge, declined to discuss the cases, citing judicial rules.
Prosecutorial misconduct was a factor in 70 of the 166 exonerations tracked in 2016 by The National Registry of Exonerations. About half of the cases involved Brady violations, meaning prosecutors failed to turn over potentially exculpatory evidence to the defense.
“The Nevada State Bar has had the opportunity in the past to discipline prosecutors who violate defendants rights, but they have not done so,” says Lisa Rasmussen, a defense attorney in Las Vegas. “Reform is needed in many places, but also with the State Bar and its understanding of what constitutes prosecutorial misconduct. In a system where there is no penalty to the individual prosecutor, we are not likely to see meaningful reform.”
Assembly Bill 292, introduced in the 2019 legislative session, would have required a prosecuting attorney to make the complete case file available to defendants. It would have required information be turned over to the prosecutor in a timely manner and would have made willfully omitting or knowingly misrepresenting information a category E felony.
The measure did not receive a hearing in either house.
Legislative measures in 2017 to curb prosecutorial misconduct were gutted by prosecutors, according to legislative minutes.
Assembly Bill 376 would have required prosecutors to exchange evidence with defense counsel 30 days before a trial or be at risk of having the evidence excluded at trial. It would have required that judges toss cases in which prosecutors exhibit bad faith in turning over evidence.
The bill would have standardized penalties in cases of Brady violations. The Clark County District Attorney’s office testified against the measure, which was reduced to a requirement that the D.A. file charges against defendants in custody within 72 hours of arrest.