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Ex-Henderson constable considers plea on public theft charges

Updated June 12, 2019 - 3:58 pm

Former Henderson Constable Earl Mitchell is in plea negotiations to resolve the felony theft and public misconduct charges that were prompted by a Review-Journal investigation into his spending of county funds.

Prosecutors have previously indicated that they would not accept anything less than a felony plea and would not allow Mitchell to get a deferred judgment through a problem gambling diversion program. However, Mitchell’s attorney Dayvid Figler declined Wednesday to say whether Mitchell would accept a felony conviction.

“I know all sides have the opinions on the nature of the charges, but everyone would love to see it resolved in a way that makes sense to all parties and the community without the need for expensive and complex litigation,” Figler said. “We understand each other’s positions a lot more now, and the parties have an opportunity to talk anew.”

Jay P. Raman, chief of the major fraud unit at the Clark County district attorney’s office, previously declined to discuss plea agreements in the case. Neither he nor his deputy could be reached for comment Wednesday.

RJ investigation

The investigation into Mitchell started with a Review-Journal article in March 2018, detailing thousands of dollars in checks he wrote himself, ATM withdrawals at casinos and use of a county debit card at restaurants and for travel.

The Review-Journal’s analysis found that about $151,000 that Mitchell requested for his deputies’ pay and expenses in 2016 and 2017 was not paid to the deputies. Mitchell wrote about $90,000 in checks out of the township account, which was filled with fees for serving legal documents and evictions, to himself.

He withdrew about $9,000 at ATMs — thousands of that at casinos or video poker bars. He used the account’s debit card to pay bar tabs, for pricey meals and to travel to places near where his adult children live.

Mitchell also transferred some money from his personal account to his township account that would have reimbursed part of the apparently personal expenses.

In December, a grand jury indicted Mitchell on four counts of theft and one count of fraudulent appropriation of property by a public officer. The grand jury determined Mitchell used $82,000 of county funds for personal use by inflating pay and expenses for deputies and pocketing the difference, records show.

“The media made the matter public and he stopped,” Raman told Judge Douglas Herndon after the indictment was unsealed.

Mitchell, who had served as constable since 1995, abandoned his re-election bid right before the Review-Journal story was posted online.

Felony sought

Early plea negotiations in the case apparently were not fruitful because prosecutors insisted on a felony conviction and refused to allow Mitchell to get a deferred judgment through gambling court, records show.

“(W)e made an offer to JP (Raman) to resolve the potential criminal charges … by entering pleas to numerous counts of misdemeanor fraud under NRS 205.375 for the anomalies which appear on the County voucher forms as well as restitution in any identifiable amount regarding monies alleged to have been falsely claimed,” Figler wrote in a November email included in the court file. “JP indicated ‘(DA Steve) Wolfson isn’t interested in misdemeanors.’ JP also indicated any deal would require that even if he needs treatment, he doesn’t seek treatment under” the problem gambling diversion program.

Raman declined to discuss Figler’s email when asked about it in February.

“Our office does not comment on negotiations in a pending case,” he wrote the Review-Journal. “Therefore, we will not be commenting on Mr. Figler’s email.”

Figler subsequently argued in court that Mitchell didn’t steal funds because constables are entitled to spend the money their office collects any way they see fit, despite a 2015 county action taking control of constable funds in Henderson and North Las Vegas.

Disqualification battle

Figler had been trying to disqualify the DA’s office, saying prosecutors had a conflict of interest because the office’s budget is overseen by county officials and the county is the victim in this case.

Prosecutors argued that the only one with a potential conflict was an assistant district attorney in the civil division who had advised Mitchell on legal matters with the constable’s office and that staffer, who has since retired, was kept out of Mitchell’s prosecution.

Figler and prosecutors clashed over who would be called as witnesses in a hearing to determine if the DA’s office would be disqualified, and District Court Judge Joe Hardy was scheduled to decide the witnesses Tuesday. Instead, the court set a July 9 hearing for a possible plea.

“Everything is on hold for us to have negotiations or determine that the parties don’t feel enough optimism to move forward so we asked the judge to hold off,” Figler said.

Contact Arthur Kane at akane@reviewjournal.com. Follow @ArthurMKane on Twitter.

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