Clark County Judges Doug Herndon and William Kephart “should be ashamed of themselves” for putting an innocent man behind bars for murder, says Ozzie Fumo, Herndon’s opponent in the race for Supreme Court Seat D.
“It’s offensive to me that someone like that believes he belongs on the Supreme Court,” Fumo says of Herndon.
Herndon did not respond to requests to be interviewed.
And it’s not just Herndon’s role in burying evidence that has Fumo blasting his opponent.
He also points to recent reversals of Herndon’s rulings.
“And all involved allowing the government to get away with something they shouldn’t get away with,” Fumo says.
In the latest reversal, issued this month, the Supreme Court said Herndon’s decision to allow the Clark County District Attorney to pursue second-degree murder charges in a driving under the influence case was a “manifest abuse of discretion.”
“It speaks volumes about his character,” Fumo said of Herndon.
Overall, Herndon has a 14.78 percent error rate on more than 800 cases, according to Our Nevada Judges, an organization that tracks appeals.
“Error rates under 10 percent show up green. Error rates over 40 percent show up red and add alarm badges to candidate cards,” says Alexander Falconi, the man behind the numbers at Our Nevada Judges.
In 2011, Herndon recused himself rather than approve or reject a plea deal in the case of David Schubert, a Clark County prosecutor arrested for possessing cocaine. Schubert lost his law license, served time for an offense that routinely warrants probation, and eventually committed suicide.
Herndon said he couldn’t “reconcile” a plea deal that would have allowed Schubert to serve probation, and said prosecutors should be held to “a higher responsibility.”
A few years later, Herndon’s own prosecutorial misconduct would be in the spotlight at a 2019 legislative hearing on compensation for the wrongfully convicted.
“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. Herndon was referring to Fred Steese, who was convicted of the murder of a circus performer in Las Vegas, despite evidence proving he was in Idaho at the time.
But Fumo says Herndon’s passive account is lacking.
“He testified against Steese in 1998. He testified against him in 2013,” Fumo says, referring to ‘Alford Plea’ proceedings, in which Steese agreed to plead guilty and avoid retrial while still maintaining his innocence. “He never apologized and he never admitted he did anything wrong. He said he was following Kephart’s lead.”
“When my clients are arrested and they are the getaway driver, they are charged with murder when the bank teller gets killed,” Fumo says. “He is just as guilty as the shooter.”
Then-District Judge Elissa Cadish issued a rare Order of Innocence in the Steese case, in which she notes prosecutors intentionally misled the jury.
Cadish is now on the Nevada Supreme Court.
“Fred Steese faced the death penalty,” says attorney Lisa Rasmussen, who successfully represented Steese before the Nevada Board of Pardons. “The thought that he could have been sentenced to death for a murder he did not commit, and could not have possibly committed, is one of the most serious issues we face in our society and in our criminal justice system.”
Rasmussen says “prosecutors were seemingly able to cast aside Fred’s alibi defense,” which was in Herndon and Kephart’s possession and not disclosed to defense attorneys. She says prosecutors “sought to actively defeat” Steese’s alibi, though they knew it was corroborated.
“The fact that Fred spent 21 years in prison for a murder he did not commit only serves to highlight that it is up to the judicial system to get it right because many prosecutors are incapable of self-regulating.”
Herndon embraced the effort to compensate the wrongfully convicted years later when his daughter, who was researching the issue, inquired about her father’s involvement in the Steese case, according to a story in ProPublica.
“Equal justice under the law. That’s what people want,” Fumo said. “Holding those that are deserving accountable. Prosecutors who break the law must be held accountable. Officers and D.A.s who hide evidence must be held accountable.”
“The public wants justice to be applied equally,” says Fumo. “Justice is supposed to be blind. It shouldn’t matter if you’re Black, brown, or white.”
“Look what’s happening today,” Fumo said of a Kentucky grand jury’s failure to indict officers in the shooting death of Breonna Taylor.
“There’s a reckoning coming in this country and a reckoning coming in Nevada,” he said.
Herndon won 45 percent of votes in June’s primary election to Fumo’s 35.6 percent. Erv Nelson garnered 10.3 percent and nine percent of voters chose “others”.
Herndon is winning the money race, having raised $776,915 as of October 15. He reports having just under $240,000 on hand.
Herndon’s major contributors include Anesthesiology Consultants Inc ($10,000) and Stronger Nevada PAC ($10,000), which says on its website that it supports conservative candidates.
Fumo raised $336,523 as of October 15 and reported $9,700 on hand. His major contributions include $10,000 from the Women’s Democratic Club. His website features endorsements from a number of union and public service organizations.
Fumo says Herndon lacks the breadth of legal experience required on the high court.
“He has no experience in family or business law,” Fumo says of his opponent, who was a Clark County prosecutor before being appointed to the bench by Gov. Kenny Guinn in 2005. “He’s only worked for the government.”
Herndon’s website says he’s the “Chief Judge of the court’s Homicide Case Team and served as Chief Judge of the Criminal Division from 2010 to 2017. “ He spent 14 years as a prosecutor, including nine in charge of the Special Victims Unit, according to his website.
Fumo cited what he called a diverse career as a businessman, attorney, and legislator.
“In this race for Nevada State Supreme Court, I will be the only candidate with firsthand experience in writing legislation, trying death penalty cases, and effectively arguing cases to the 9th Circuit Court of Appeals,” Fumo says on his website.
He may be best known for defending O.J. Simpson when he ran afoul of the law in Las Vegas, but has also practiced juvenile, civil, and business law.
Most recently, Fumo served two terms in the State Assembly, where he was frustrated by obstacles to criminal justice reforms.
“I’ve spent my entire career defending the constitution,” he says. “Interpreting the law is the next logical step.”