A judge on Monday ordered the release of a man who served less than a quarter of the 41-year prison sentence he received for a conviction involving the kidnapping and sexual assault of a 6-year-old girl.
Late last month, the Nevada Supreme Court pointed to misconduct in the case, questioning a meeting between one of the top prosecutors in Las Vegas and now-retired District Judge Doug Smith during the 2015 trial of Diego Salazar.
“In short, that misconduct occurred is clear,” a three-judge panel wrote. “But … we are unable to determine the extent of the prosecutorial and/or judicial misconduct.”
The high court called for a hearing to determine the extent of a conversation between Smith and Assistant District Attorney Robert Daskas, which was followed by the judge quashing a warrant for one of the key witnesses in Salazar’s trial.
But after defense attorneys recently wrote in court papers that Daskas “did not provide, nor ask for, any benefit to the witness,” prosecutors agreed to offer Salazar a deal that would allow him to walk free immediately without registering as a sex offender.
At a court hearing Monday, the 41-year-old Salazar pleaded guilty to one count each of battery with substantial bodily harm and possession of a controlled substance. He did so under what is known as an Alford agreement, meaning he acknowledged only that prosecutors had enough evidence to prove the allegations to a jury.
District Judge Cristina Silva then ordered his release.
In 2015, Salazar was convicted of committing second-degree kidnapping and sexual assault at an Indian Springs trailer park where he lived. But that conviction later was overturned because Smith failed to swear in the jury panel.
The high court reviewed misconduct allegations as Salazar was awaiting a new trial.
Defendant maintains innocence
Defense attorneys had pointed out that Daskas, who was not a trial prosecutor, met privately with Smith as questions were raised about a witness who said she saw Salazar with the alleged victim.
Gabrielle Bertloff, a friend of Salazar’s since childhood, testified that she watched the girl walk out of his camper in March 2013 while putting on her shoes.
The girl also testified that Salazar had grabbed her by the wrist, dragged her to his camper, placed one hand over her mouth and put a hand down her pants.
Deputy Public Defender Nadia Hojjat said Salazar has maintained his innocence since he was charged. She also said none of the other children at the trailer park reported seeing what was alleged.
“This was a very weak case for the state,” she said Monday. “But for the actions that occurred, we don’t think the state would have been able to meet their burden at trial. We don’t think Mr. Salazar got a fair trial.”
At the time of Salazar’s trial, Bertloff was living in Florida and prosecutors flew her to Las Vegas for the trial. She had a warrant for her arrest because she had failed to appear in North Las Vegas Justice Court on a charge of possession of a dangerous drug without a prescription.
Meeting with Daskas on a trial break in his chambers, Smith refused to allow defense attorneys into the room, telling them, “Never walk in my office the way you did again.”
Smith later had Bertloff arrested before nullifying her warrant and releasing her, according to court records.
Deputy Public Defender Jennifer Schwartz asked Smith why he quashed the warrant.
The judge replied: “Because I’m easy. I just think that you should do that. I try to be — even though you think that I’m a rotten judge, I do try to be nice. And the nice thing to do would be to quash the warrant so she can take care of it.”
Smith said that “at no time – at no time did Robert Daskas ask me to do anything. Never.”
‘I don’t remember a thing’
One of the trial prosecutors, Jacqueline Bluth, now a district judge, said she made no promises to Bertloff, according to the transcripts.
Smith, who retired in 2019, now works as a prosecutor in Utah.
Reached Monday, he said he was unaware of the Supreme Court order. Asked about the Salazar trial, he said, “I don’t remember a thing.”
The Supreme Court found that the judge’s decision helped Bertloff.
“The record is devoid of evidence as to whether other members of the district attorney’s office (such as an investigator, the other prosecutor, a process server, etc.) may have promised the witness immunity or a related benefit in exchange for her testimony,” the justices wrote.
Last week, Daskas met with Salazar’s attorneys and agreed to answer questions about the meeting he had with Smith. Hojjat wrote in a court brief that Daskas did not request the in-chambers meeting and had followed a directive from the judge.
Daskas also told defense attorneys that he “merely wanted to know what Judge Smith intended to do,” Hojjat wrote. “At the end of the conversation, Mr. Daskas was still unsure what action Judge Smith was going to take.”
Hojjat said she agreed that Smith acted on his own.
“Mr. Salazar, through his counsel, accepts the representations of Mr. Daskas that he did not provide, nor ask for, any benefit to the witness, and he did not try to convince Judge Smith to rule in the manner which he eventually did,” the defense attorney wrote. “Mr. Salazar, through his counsel, continues to take issue with Judge Smith calling Mr. Daskas into his chambers while an argument with the State was pending.”
In an email sent Monday to the Las Vegas Review-Journal, Daskas wrote: “I appreciate that, after the Nevada Supreme Court issued its Order, Mr. Salazar’s attorney accepted my invitation to meet so I could supplement the limited record. I firmly believe that Mr. Salazar’s attorney is now satisfied that no misconduct occurred by anyone in the District Attorney’s Office.”