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Judge’s plea deal rejection challenged

A judge’s relationship with a television news reporter is being questioned by a defense lawyer who wants the judge to recuse herself from his client’s case.

In an affidavit filed Wednesday , lawyer Robert Draskovich said Judge Kathleen Delaney disregarded a stipulated sentence of probation for his client, sex offender Paul Santiago, 61, and sentenced him to a maximum 16- to 40-year prison term.

Draskovich contends in court documents that if a judge ignores a stipulated sentence agreed to by prosecutors and defendants, the judge must — according to case law — inform the defendant, allow him to withdraw a guilty plea and go to trial.

“The defendant was never told by the sentencing court that he would not be allowed to withdraw his guilty plea should the court choose to reject the agreement he negotiated with the state,” Dras­kovich said in his affidavit.

Also causing Draskovich “grave concern” was Delaney’s relationship with KLAS-TV, Channel 8 reporter Colleen McCarty, who covered Santiago’s May 22 sentencing hearing.

In April, McCarty completed an externship, a short internship worth four credits, under Delaney through Boyd Law School at the University of Nevada, Las Vegas.

Santiago was charged five years ago with sexually assaulting a 10-year-old girl. The case garnered no media coverage until September 2012, when McCarty picked up the story, Draskovich said. Her externship with Delaney began months later, in late January.

Because of those two factors, Draskovich is asking Delaney to send the case to a new judge and allow Santiago to withdraw his guilty plea.

But Delaney stood by her decision Friday and told the Review-Journal that her relationship with McCarty did not influence her ruling. The sentence she handed down was identical to the one recommended by the Department of Parole and Probation.

Santiago’s case had languished in District Court since 2008 and has been handled by at least six judges.

Prosecutors say Santiago forced a 10-year-old girl to perform oral sex on him on Christmas Eve 2004. He wasn’t charged until 2007.

Santiago was previously convicted of sexually assaulting a woman in California, but was able to obtain a nurse’s license in Nevada, court documents show.

In 2012, after lengthy negotiations, a plea agreement was reached before Judge Donald Mosley, who did not agree to the stipulated sentence of probation and allowed the defendant to withdraw his plea and go to trial.

Mosley later retired. Santiago’s case bounced around and landed before Delaney.

Two days before his trial, Santiago again agreed to a plea deal. On Feb. 25, Santiago said he was guilty of two counts of attempted sexual assault. The plea agreement stipulated probation, with an underlying sentence of 16 to 40 years should his probation be revoked.

A transcript of the hearing showed Delaney warned Santiago about his sentence: “You do understand that although the parties have stipulated that your sentence could include potentially probation that, ultimately, your sentence is up to this court to determine.”

Santiago said he understood.

Prosecutor Lisa Luzaich said at the May 22 sentencing that the Clark County district attorney’s office agreed to probation because, “There are proof problems in this case.”

She asked the judge to follow the recommendation, but Delaney declined and sentenced Santiago to the lengthy prison term. She did not offer him an opportunity to withdraw his guilty plea.

Draskovich immediately asked the judge to stay the sentence so he could appeal, but Delaney refused.

In his affidavit, Draskovich said the judge was obligated to tell Santiago she planned not to abide by the agreement.

Case law “demands that the canvassing court must advise a defendant that should the Court choose to disregard the plea agreement then the court will not allow the defendant to withdraw his plea.”

In her report on Santiago’s May sentencing, McCarty did not disclose that she had worked for Delaney, which raised concerns for one authority on journalism ethics.

It would have been appropriate for McCarty to pass the story on to another reporter at her station, said Edward Wasserman, dean of the University of California, Berkeley graduate school of journalism.

“It would be wise for the reporter to distance herself from covering the judge,” he said.

That the public was not aware of the relationship, “It just muddies things up a bit,” Wasserman said.

The dean noted that he was not familiar with McCarty’s report or Santiago’s case. His assessment was based on information from a reporter.

McCarty, who in May graduated from Boyd Law School with honors and is studying to take the State of Nevada Bar exam, declined to comment for this story.

Santiago currently awaits sentencing for a separate criminal case stemming from allegations he inappropriately touched women while working at a blood testing laboratory in 2012.

In April, he pleaded guilty to a charge of open and gross lewdness, a mis­demeanor, in that case. A sentencing hearing was set for July 9 before Judge Abbi Silver.

Santiago is in High Desert State Prison in Indian Springs, about 60 miles north of Las Vegas. He will get his chance to fight for a lighter sentence at a hearing set for June 24 before Delaney.

Contact reporter Francis McCabe at
fmccabe@reviewjournal.com or 702-380-1039.

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