Wednesday, December 22, 2004
Copyright © Las Vegas Review-Journal

Court upholds Mosley fine, censure

Discipline imposed against judge for using his position to gain child custody case advantage

Donald Mosley State Supreme Court upholds $5,000 fine, censure of District judge

CARSON CITY -- The Nevada Supreme Court on Tuesday upheld the $5,000 fine and public censure imposed against District Judge Donald Mosley by the Commission on Judicial Discipline.

In a split decision, the court threw out one of the seven violations of the code of judicial conduct that had been imposed against Mosley by the Commission on Judicial Discipline.

"A reasonable, objective observer could conclude that the judge was using his position for personal advantage, thereby diminishing public confidence in the integrity and impartiality of the judiciary," stated Chief Justice Miriam Shearing in the majority opinion.

Six of the seven justices backed the fine and censure. Justice Mark Gibbons dissented, maintaining the commission had refused to allow a judicial ethics scholar to testify in the case, an omission he said violated Mosley's due process rights.

The discipline was imposed against Mosley for using his judicial position to gain an advantage in a child custody battle. For years, Mosley has been engaged in a bitter custody battle with Terry Mosley, the mother of his 12-year-old son.

Their dispute has been so rancorous that Mary Boetsch, a lawyer for the commission, told the court last year it likely would not end until the boy turns 18.

Mosley was vacationing Tuesday and not immediately available for comment, said his secretary.

Contacted in Las Vegas, Terry Mosley was gratified by the decision.

"I am glad someone spanked him," she said about the state Supreme Court decision. "But this has no real ramifications for the Judge Mosley. He is still a judge."

Justices upheld one of the most serious violations against Mosley: that he held a private 90-minute conversation with Joseph McLaughlin, who was awaiting sentencing in his court on kidnapping and other charges.

McLaughlin and his wife earlier had lived briefly with Terry Mosley and later testified for the judge in a child custody hearing.

Mosley should have known he should have recused himself from McLaughlin's case, Shearing stated in the opinion.

Mosley "had to realize that the McLaughlins would expect to get an advantage in the criminal case by testifying in favor of the judge on a matter important to the judge," she stated.

Shearing noted that Mosley did not recuse himself from the McLaughlin case until Oct. 10, 1997, the day the McLaughlins testified at the child custody hearing.

Mosley had charged his conversation with the McLaughlin did not violate the judicial code because he discussed the child custody case, not the merits of the criminal case. But McLaughlin's lawyer said the criminal case was discussed in that meeting.

The majority of justices threw out one of the violations the commission levied against Mosley for ordering the release of Robert D'Amore without notifying the district attorney's office. Police had arrested D'Amore on a bench warrant issued by District Judge John McGroarty for failing to make restitution in a theft case. A friend of Mosley had requested he release D'Amore.

In the opinion, Shearing said testimony from judges showed they often get calls from police, defense lawyers and citizens requesting releases of prisoners or bail reductions.

"This practice continued with the acquiescence of every district attorney for over 30 years," she said.

Justice Deborah Agosti concurred with Shearing's opinion. Justices Bill Maupin and Nancy Becker, along with District Judge Andrew Puccinelli, backed the decision that the fine and censure should be imposed.

But they disagreed with Shearing that both of the violations involving D'Amore's release should be dropped. Puccinelli was sitting in the case in the absence of Justice Myron Leavitt, then ill, and who later died. The appeals hearing was held on Nov. 12, 2003.