Judge Mosley retirement to affect Desai trial
District Judge Donald Mosley, who has been presiding over Dr. Dipak Desai's criminal case the past 18 months, is retiring on March 2, just 10 days before the scheduled trial.
Mosley, who turns 65 on Feb. 28, sent a letter to Gov. Brian Sandoval on Monday informing him of his retirement after 33 years on the bench.
"It has been an honor to serve the citizens of our state these many years," Mosley wrote in his two-paragraph letter. "I know that with calm reflection and your experience on the bench, your selection of my replacement will make us proud."
Mosley, whose career has been peppered with controversy, did not respond Thursday to a request for an interview to explain his decision to step down at this time.
His retirement almost certainly will delay the March 12 trial of Desai and two of his nurse anesthetists on criminal charges stemming from the 2007 hepatitis C outbreak.
Attorney Michael Cristalli, who represents one of the nurse anesthetists, said Thursday the trial was expected to be delayed even if Mosley was not planning to retire.
"I think that everyone understood that whether or not Judge Mosley was going to leave the bench, we were going to need a continuance in this matter," Cristalli said.
Several issues affecting the trial, which could run six weeks or more, are in play.
But the biggest issue, according to Cristalli, is the defense effort to discover evidence in the massive case.
A new judge also is likely to need more than 10 days to get familiar with a case that was the result of one of the biggest investigations ever undertaken by the Metropolitan Police Department.
Desai, 62, and nurse anesthetists Keith Mathahs, 75, and Ronald Lakeman, 64, are facing 28 felony charges, including racketeering, insurance fraud and neglect of patients. The charges revolve around seven people who authorities say were infected with the potentially deadly hepatitis C virus at Desai's clinics.
Chief District Judge Jennifer Togliatti has not yet made a decision on who will succeed Mosley on the case, a courthouse spokeswoman said Thursday.
The flow of evidence in the high-profile case has presented a huge problem for defense lawyers, Cristalli said.
Cristalli has estimated that there are 1 million or more pages of documents, and more are being sought.
Prosecutors think they have turned over all of the documents related to the criminal investigation and everything they received from prosecutors in Desai's federal case.
Desai is to be tried in federal court on May 22 with Tonya Rushing, his clinic manager, on one count of conspiracy and 25 counts of health care fraud.
A federal indictment alleged that the pair carried out a scheme from January 2005 through February 2008 to inflate the length of medical procedures and overbill health insurance companies.
Federal prosecutors have indicated they probably would wait to try their case until after the state trial, which means the federal trial also is likely to be delayed.
The issue of Desai's competency to assist his lawyers hasn't been raised yet in the federal case.
The unresolved issues regarding the discovery of evidence in the state case primarily are related to documents that have surfaced in the massive civil litigation involving Desai and his clinics.
As many as 250 former clinic patients infected with hepatitis have filed medical malpractice lawsuits, and thousands more have sued over the stress of having to be tested for hepatitis C.
Defense lawyers have been going all out to gain access to sworn depositions and other documents in those cases. They also have been fighting to obtain all of the files of the Southern Nevada Health District, which initially investigated the 2007 hepatitis C outbreak.
Months of delays in the case over whether Desai was competent to stand trial also have precluded his lawyers from filing an array of pretrial motions, including one challenging the grand jury proceedings that led to his indictment. Those motions will take time to go through the court process, further pushing back the trial date.
At a District Court hearing last month, prosecutors presented witnesses who said Desai was "malingering" or faking his physical impairments from two strokes to obstruct the criminal case.
Three state medical experts all testified under oath that Desai was "exaggerating" the effects of the strokes.
The three experts, part of a team that evaluated Desai for six months at Lake's Crossing, the state's secure mental hospital in Sparks, all concluded during their testimony that Desai was competent to face a jury on the criminal charges.
District Judge Kathleen Delaney agreed, issuing an order last week finding Desai fit to stand trial.
Contact reporter Jeff German at jgerman@reviewjournal.com or 702-380-8135.
Judge's controversies
Retiring District Judge Donald Mosley has been involved in several controversies throughout his 33-year career on the bench.
In 1990, Mosley was cited for battery after a scuffle with a motorist on U.S. Highway 6 near Ely. The judge claimed self-defense, and the misdemeanor was dismissed the next year.
In August 2000, Mosley filed a federal lawsuit against the Nevada Judicial Discipline Commission, shortly before the commission was scheduled to hear a complaint accusing him of violating the Nevada Code of Judicial Conduct.
The lawsuit challenged the commission's structure and the manner in which the agency conducted its investigation of Mosley.
Mosley sought a court order barring the commission from proceeding with the complaint, but Senior U.S. District Judge Justin Quackenbush denied the request.
After a hearing in 2002, the commission concluded that Mosley committed seven violations that warranted punishment. It ruled that Mosley should receive a "strongly worded censure" and be fined $5,000.
The Nevada Supreme Court later threw out one of the violations but upheld the punishment.
Mosley was disciplined for using his position to gain an advantage in a child custody battle. For years, he had been engaged in a bitter custody battle with Terry Mosley, the mother of his son.
In 2005, Quackenbush dismissed the judge's lawsuit, ruling that commissioners were immune from his claims for damages against them.
A 2006 Los Angeles Times series, which focused on the Las Vegas justice system, also raised questions about a $10,000 loan Mosley made to his girlfriend from his campaign fund.
The judge's son, now 19, has made headlines of his own in recent years. In 2008, Michael Mosley faced criminal charges in connection with a Henderson crash that left a 15-year-old girl dead. He was arrested again in December on a reckless driving charge.
Mosley, a Tulsa University Law School graduate, became a district judge in 1983. Before that he spent four years as a Las Vegas municipal judge.
In the most recent Las Vegas Review-Journal Judging the Judges survey, in which lawyers evaluate judicial performance, 63 percent of respondents said Mosley should be retained. Attorneys who participated completed online evaluation ballots in November.
CARRI GEER THEVENOT / REVIEW-JOURNAL
