The first coroner's inquest in more than a year has been scheduled for early May, officials said Friday, setting up another potential legal showdown that could undermine or postpone the fact-finding hearing.
Several legal challenges have delayed the inquest into the 2010 death of Eduardo Lopez-Hernandez, who was shocked with a Taser up to 19 times at the hands of Nevada Highway Patrol troopers.
But after two judges said it could proceed after minor changes, it's set for May 3 and 4. Justice of the Peace Karen Bennett-Haron, who oversaw the inquest into the 2010 death of Trevon Cole, would preside.
The inquest would be the first since October 2010 and the first since Clark County commissioners overhauled the fact-finding hearing. A panel of seven citizens won't rule the death justified, excusable or criminal, as they did for more than 30 years of inquests. They would instead answer a series of questions -- such as whether the officer gave warnings before shooting -- that have been agreed upon before the inquest.
And the most significant change -- allowing an ombudsman representing the family of the deceased to cross-examine officers -- remains a point of contention for police. Lawyer Mark Bailus will assume the role for Lopez-Hernandez's inquest.
Chris Collins, president of the Las Vegas Police Protective Association, the officers union that also is representing the troopers in their legal battle, said police feel the new process is unconstitutional and will try to delay the upcoming inquest.
"My instructions to our attorney was, 'If we can injunct it, injunct it,' " Collins said.
They've managed to file challenges to the inquest process until late last year, when two separate judges ruled the inquests were not unconstitutional.
Their options might be exhausted, but even if Collins' organization can't delay the process, he said the inquest will look far different: Officers won't answer questions.
What you thought was a lousy system will be worse because the officers won't be participating, he said.
Police will be required to show up and take the stand for the hearing, Clark County Coroner Mike Murphy said, but they will have the ability to plead use the Fifth Amendment against self-incrimination to not answer questions.
"If they're in a position where they can exercise them, that's certainly within their personal decisions," Murphy said.
And that could become another point of contention: Can all officers use that protection?
"That's the big issue," Collins said.
Officers who actively participated in someone's death can choose not to testify because they later could face criminal charges -- they can choose not to incriminate themselves. But Collins thinks witness officers who did not participate in the person's death can plead the Fifth also. He reasons that officers who fail to intervene in possible criminal behavior by their peers might face charges themselves.
These instances in which witness officers face charges are few and far between, however. And this is bad legal advice, according to Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada.
"Not every witness to a crime can merely plead the Fifth Amendment because they don't want to testify," he said. "It is the same for police officers as it for civilians, but no greater."
If Bennett-Haron agrees, she could hold witness officers in contempt of court if they don't testify. Or the district attorney later could charge them with criminal contempt.
The death of Lopez-Hernandez could be an interesting test case.
The 21-year-old was acting erratically on U.S. Highway 95 on Aug. 25, 2010, when at least five Highway Patrol troopers and a Henderson police officer tried to restrain him. But only two troopers used a Taser on him -- records show the device was fired 19 times.
Lopez-Hernandez stopped breathing moments later. Troopers started CPR and briefly revived him, but the father-to-be died at a hospital about 30 minutes later.
Why Lopez-Hernandez was acting erratically on the highway is still unclear. He was being attacked by several other people on the highway before troopers arrived and tried to help him.
The man's family has hired lawyer Mitchell Bisson to sue the Highway Patrol, but he said the inquest will not affect the lawsuit; he already knows much about the case through case proceedings.
But the family feels the inquest will be important because the ombudsman will be able to represent their point of view to the public, Bisson said.
"Now the family feels there's someone there for them," he said.
Eighteen other cases are awaiting coroner's inquests.
Contact reporter Lawrence Mower at firstname.lastname@example.org or 702-383-0440.