Clark County District Judge Douglas Herndon had an early Wednesday morning lead over Las Vegas attorney and state legislator Ozzie Fumo in the race for Seat D on the Nevada Supreme Court, by a margin of 46.6 to 35.8 percent.
Total Election Day vote tallies from Clark County, the state’s most populous county, had yet to be counted Wednesday morning.
Herndon received a boost late in the campaign from Sheldon and Miriam Adelson’s combined half a million dollar contribution to a political action committee called Judge the Judges PAC. A campaign contribution report indicates the PAC paid $10,000 to Argentum Partners, which is working for Herndon’s campaign.
Herndon’s campaign did not respond to requests for comment.
Political action committees are permitted to make unlimited contributions to candidates, unlike individuals and other entities, which are allowed to contribute $10,000 per cycle — $5,000 in the primary election and $5,000 in the general.
Fumo, who has served two terms in the Nevada Assembly, said Herndon is unqualified to be a judge, pointing to a series of recent rulings remanded by the Nevada Supreme Court, and Herndon’s misconduct as a prosecutor in the murder conviction of Fred Steese, who spent 21 years behind bars before a judge issued a rare order of actual innocence.
Herndon successfully prosecuted Steese despite evidence proving Steese was in Idaho at the time.
Then-District Judge Elissa Cadish issued the Order of Innocence in the Steese case, in which she noted prosecutors intentionally misled the jury.
Cadish is now on the high court that Herndon hopes to join.
In 2019, Herndon testified at a 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,” he said, choking back tears.
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.”
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.
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.
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 raised $776,915 as of Oct. 15 and reported having just under $240,000 on hand.
Herndon’s other 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 Oct. 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 said 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.”