Prosecutors are asking the Nevada Supreme Court to overturn a judge’s decision to throw out attempted murder and battery charges at the start of a trial this week.
After jurors heard opening statements in the trial on Tuesday, Chief Deputy District Attorney Jake Villani asked District Judge Elizabeth Gonzalez to delay the proceedings briefly. He said he needed additional time to call witnesses, who had not arrived at the courthouse.
“Either you got a witness that’s available, and you planned for a problem, because that’s what lawyers do — you always got a backup plan — and if those witnesses are available, I’m happy to call them first,” the judge said. “If they’re not available, I’m not waiting for 20 minutes.”
In court papers, prosecutors had listed at least 28 people, including Metropolitan Police Department officers, who could testify against 29-year-old Rigdell Farmer during the trial.
Villani told the judge that the shooting victim, whom he expected to testify first, was a homeless heroin addict named Dennis Avansdergregoriam, and he was running late. Two other witnesses, expected to testify through a videoconference, also were unavailable at the start of the trial, the prosecutor said.
“All I’m asking for is the court to give a little leniency to us,” Villani said, before the judge started speaking again.
“Counsel, I’m not asking you to work with me. Either you’re going to try your case, or you’re not,” the judge said. “I’m not asking you to accommodate me at all, Mr. Villani. What I’d like you to do is to call a witness. I’m going to go freshen my coffee, and if you don’t have a witness in five minutes, I’m going to ask you if you rest again.”
The judge turned to Deputy Public Defender Steven Lisk, who said, “Your honor, if the state doesn’t have a witness to call, I would ask that they rest, and we’ll be asking for the case to be dismissed.”
Prosecutors alleged that Farmer shot the victim in the chest and leg during a drug deal gone awry near the intersection of Tropicana Avenue and Rainbow Boulevard in August. Deputy public defenders argued that Farmer was acting in self-defense and that Avansdergregoriam, a would-be robber, was shot during a struggle over a gun.
The judge allowed prosecutors five days for a ruling from the high court, while Farmer remained in custody.
Since the jury had been sworn in and heard opening statements a day earlier, a dismissal would mean that Farmer’s constitutional right against double jeopardy would apply, and prosecutors could not retry the case against him.
“Obviously, the defense is happy over the outcome, even if the case was dismissed in a way we had not anticipated,” Lisk said. “We believed that after hearing the evidence, that the jury was going to return a verdict of not guilty. We fully expect that the Supreme Court will not overrule Judge Gonzalez’s decision and the dismissal will rightfully stand. We will continue to fight for Dell’s freedom and maintain his innocence throughout this entire process.”
In a phone interview Wednesday,District Attorney Steve Wolfson said prosecutors consider the judge’s actions unreasonable.
“We respectfully disagree with the court’s ruling,” Wolfson said. “The prosecutor asked for a short delay in the proceedings. Under the circumstances it was a reasonable request. And therefore we believe the judge abused her discretion in not delaying the matter for a short time”