After lawyer’s mistrial, move on down the road in search of justice

Standing near the corner of Las Vegas Boulevard and Bonneville Avenue, Noel Gage almost looked like a man waiting for a crosstown bus.

But attorneys in tailored suits don't ride buses in this town. Flanked by family and friends, Gage smiled as he flicked away a reporter's question like lint from his lapel. The picture of confidence and prince of "no comment," that was Noel Gage.

Alas, that picture was also one that was complicated by the subject's perspiration and ghostly pallor.

If the 69-year-old, medically trained personal injury attorney had a care in the world following Tuesday's mistrial in a fraud and conspiracy case, Gage wasn't about to share it with me. The U.S. attorney's office intended to use the Gage trial to drive the first stake into the dark heart of Southern Nevada's lawyer-doctor medical malpractice racket. But it missed its mark after jurors deliberated for a week without reaching a verdict.

There are reasons for that. The very thing that made Gage so tempting to the government -- his proximity to medical malpractice consultant Howard Awand -- created distance between the attorney and the physicians who accused him of cutting sinister deals and dishing kickbacks. The targeted Awand was the ghost in Senior U.S. District Judge Justin Quackenbush's courtroom: often talked about, but never seen.

Then there were the key witnesses, physicians John Thalgott and Benjamin Venger, who benefited from deal-making attorney George Kelesis' prestidigitation to avoid felony charges and save their medical licenses. They had their moments, but were often made to look like the greater villains under Tom Pitaro's cross-examination.

Jurors no doubt found themselves asking who was the bigger sinner: the allegedly shady trial lawyer or the admittedly shady surgeons.

While neither Thalgott nor Venger delivered the knockout punch the prosecution must have been hoping for against Gage, both were specific and persuasive when it came to implicating Awand in underhanded ethics and felonious misdeeds.

Which brings me to the point of today's courthouse exercise: What should the government and Gage do next, and why should you be concerned?

The first answer is simple. They should avoid a second trial and cut a deal that enables Gage and the government to save face.

Prosecutors saw Quackenbush dismiss 13 of the original 19 counts against Gage, and the hung jury failed to convict on charges related to the case of Melodie Simon. The former Olympic volleyball player's routine back surgery in 2000 left her paralyzed and resulted in a malpractice case.

Prosecutors made a strong argument that Simon would have received more compensation had Gage mounted a more vigorous offense and had not played case mechanic with Awand and physicians Thalgott and Mark Kabins.

If Gage were to cut Simon a big check and agree to cooperate in the government's investigation -- essentially the deals Thalgott and Venger received -- the U.S. attorney would be able to move forward against its more important target, Awand.

Getting saddled with a hung jury wasn't embarrassing to the government, but I think it distracts the prosecution from what appears to be its game plan: Convict Awand and go after other bad actors.

But, of course, for some reason no one lets me decide these things.

"We are confident in the case against this defendant, and we look forward to a retrial," U.S. Attorney Gregory Brower said Tuesday in a statement.

While I've read fortune cookies with longer epigrams, Brower's message is clear: The government has all the time and resources in the world. Retrial? No problem.

Gage has finite resources, but he has more than enough for a second trial. He also has a pugnacious advocate in Pitaro.

"If they want to retry it, we'll be there to try it again," Pitaro said. "The majority of the counts were dismissed. The jury worked real hard. We'll take it in front of another jury."

But come on, fellas. This isn't Ali-Frazier II. It's a detour on the way to addressing a bigger question about the way legal business gets done in some areas of the Southern Nevada justice system.

That's why you should care very much about this case of alleged shady dealing.

Gage and the government should cut their deal, get on the bus, and let it keep rolling.

John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.