District Court Department 2
Kierny v. Scotti
Kierny was defending Jose Azucena, a suspect in a child sexual assault case in 2017 when Judge Scotti became angry during jury selection with a woman who said her work as a nurse made it difficult to be impartial.
“Yes, I was angry. She gave two different excuses on two different days…“ says Scotti, who admits he threw his paper pocket copy of the U.S. Constitution at the wall. “We were on the verge of losing the entire jury pool because this juror was saying things that tainted the pool. I felt it was contempt of court but i didn’t want to charge contempt.”
On appeal, the Supreme Court threw out the conviction and remanded the case for a new trial.
The Judicial Discipline Commission, in a complaint filed in August, says Scotti “became angered and threw a book against a wall, cursed, berated, yelled at and threatened the prospective juror for creating what the respondent appeared to be believe was a contrived excuse to avoid jury service.”
“The description is not accurate and fortunately, there is a video,” Scotti says of the JDC complaint. “And anyone watching can see that, yes, it was a bad day. What they wrote up is not what happened.”
Scotti says he was going through “very tough personal issues” involving his father’s diagnosis with dementia and says the outburst was isolated.
But Kierny says “that didn’t ring true” to her.
“In that case there was an incident where he had flown off the handle at a clerk,” she says. “Another instance, he got angry and had us escorted out of the courtroom. As a judge, you have to separate your personal and professional life.”
Kierny says that because she “saw something unacceptable” she “stepped up to be the change I want to see in the court system.”
“I have no excuse,” Scotti says of his behavior. “I apologize. I overreacted. I got emotional. I’ve learned from this mistake. I’ve been better since then.”
Kierny, a career public defender, says she’s seen the other side of the criminal justice system as a victim volunteer for Safe Nest, a domestic violence shelter.
She says her years as a defense attorney won’t result in bias.
“My number one goal is to follow the law. When you put your judgement in place of what should be, you get reversed,” she says. “There will definitely be cases where I don’t think people are going to to be safe and incarceration is the only option we have.”
In cases involving drug abuse or mental health issues, she says “fixing the underlying condition, that’s a win-win.”
Given the prohibitive cost of civil litigation, Kierny has ideas for improving access to justice for pro se litigants — those who represent themselves.
“The Clerk’s office doesn’t accept handwritten or typed motions. Pro se litigants don’t know how to efile. That could be changed,” she said.
“Also, judges require pro se litigants to file their own orders. The judge will reject it and says “That’s not what I said. Try again. The judge could write the orders themselves,” Kierny suggested.
“Judges can sort of encourage people to take pro bono cases. ‘If you’ll take a case I’ll call you first,’” she says of a potential incentive to offer legal aid.
Kierny has raised $61,742 and has $4,807 on hand as of July 15.
Scotti, was elected to the bench in 2014. He has an error rate of 17.72 percent, according to Our Nevada Judges. He’d raised just under $251,657 and had $17,636 remaining.
Scotti says he’s concerned about a new policy that allows the Department of Corrections to deduct 100 percent of an inmates’ funds to go toward victim restitution, in accordance with the Marsy’s Law mandate that victims receive full and timely restitution.
The policy could affect his willingness to order restitution, he says.
“We’re not just computers. We have to have humanity,” he says of the judiciary. “While I do strictly follow and defend the law and the constitution, you still have to bring sympathy and rationality” to rulings. “You don’t want to financially destroy a family just to bring restitution.
Scotti says judicial races, like everything else, are becoming more partisan.
“Unfortunately, it’s invaded our judicial system.”
Currently, judges and judicial candidates are able to disclose party affiliation only if asked.
“I think it should be prohibited from answering under any circumstances because people have to have confidence in our judiciary,” he said.
Scotti says he’s a “strong advocate of criminal justice reform.”
He’s a columnist for a prison magazine owned by a company that offers online degrees to the incarcerated and former prisoners. He’s also on the Board of Directors of Empowerment Through Education PAC, which he says is “developing transitional housing for parolees.”
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.