Jail brawl prompts new trial

Clark County prosecutors weren't messing around when they asked a District Court judge to imprison for up to six years a man convicted of battery stemming from a jailhouse brawl.

The man in question, Jose Covarrubias, was acquitted five months ago when a jury said there wasn't enough evidence to convict the 23-year-old, who was the getaway driver in a deadly shooting at a 2007 illegal street race.

A defense attorney said that left prosecutors itching for a chance to put him away for a lengthy period of time for the felony battery by a prisoner count, a charge he picked up while awaiting trial in his murder case.

Prosecutor Elizabeth Mercer on May 27 implored District Judge James Bixler to give Covarrubias the maximum sentence, a six-year term with eligibility for parole after 28 months.

"I'm going to ask your honor to place him on paper for as long as possible," Mercer said.

Attorney Michael Sanft accused prosecutors of trying to reargue the murder case. "But for the fact that he was accused of committing first-degree murder ... he would not be standing here," Sanft said of his client.

Mercer responded: "I think we can all agree that an acquittal doesn't mean actual innocence."

The statement drew laughter from the two dozen or so defendants and defense attorneys in Bixler's court and underlined the aggressive stance prosecutors have taken against Covarrubias.

Authorities originally charged Covarrubias with one count each of battery by a prisoner and battery with use of a deadly weapon resulting in substantial bodily harm for an April 1, 2009, fight that began on the 4:15 a.m. chow line.

Sanft said Covarrubias was with Francisco Cruz, a co-defendant from the murder case, when a fight broke out between two inmates.

During the tussle, Covarrubias was struck and joined the fray in what Sanft said was an act of self-defense.

Eight months after the fight and nearly three years after he was first arrested, Covarrubias, along with Cruz and two others, stood trial for the murder of Nick Gazzano.

The murder revolved around a failed carjacking at an illegal street race in February 2007. After the intended robbery victim fled from three of Covarrubias' friends, they blasted away with handguns, fatally shooting innocent bystander Gazzano.

In January, co-defendants Omar Ayala, Angel Perez, and Cruz, all in their early 20s, were convicted of second-degree murder in Gazzano's death and other felonies. The three defendants were sentenced in April to 24 years to life in prison.

At the murder trial, authorities said Covarrubias was the getaway driver and knew about the robbery attempt.

Sanft argued that Covarrubias picked up his friends after the gunfire erupted and didn't know about the attempted robbery.

The jury found him not guilty. But jurors never heard a key piece of evidence implicating Covarrubias in the robbery and the slaying because of the confrontation clause cemented in the Sixth Amendment, which states defendants have the right to confront their accusers.

Cruz had confessed to police after the shooting and indicated Covarrubias knew about the plan to rob someone at the street race.

But the statement could not be used against Covarrubias unless Cruz testified, which he didn't, because defendants are protected by the Fifth Amendment against implicating themselves in a crime.

At the time of Covarrubias' acquittal, prosecutors said they respected the jury's verdict, but also knew that the jury did not hear all the evidence in the case.

A couple of months after the acquittal, prosecutors began making deals with inmates charged in the jailhouse brawl.

Charges were dropped against one of the inmates. Three others, including Cruz, pleaded guilty. As part of the plea deals, none were sentenced to a term longer than 12 to 30 months in prison, sentences that were to run concurrently with prison terms the inmates were already serving.

Covarrubias was offered a deal but declined, Sanft said.

After a three-day trial in March, a jury found Covarrubias guilty of battery by a prisoner and acquitted him of battery with use of a deadly weapon resulting in substantial bodily harm.

The verdict gave prosecutors a chance to try to persuade a judge to hang some extra time on Covarrubias.

Chief Deputy District Attorney Mark DiGiacomo, who tried the murder case, said prosecutors weren't trying to hold Covarrubias accountable for the murder by seeking the stiff battery sentence. "We're holding him accountable for the crime he committed."

DiGiacomo said, "The fact that he's involved in a murder and, while pending trial, he joins one of his co-conspirators from that murder and commits a new crime in our jail is something that we're not going to take lightly, and certainly we're going to prosecute him."

After listening to Mercer's argument in May, Covarrubias apologized to the court and to his family, specifically his mother, and asked for mercy from the judge.

Bixler sentenced him to one to four years in prison. Because he had already been imprisoned for more than 400 days on the battery charge, Covarrubias was eligible for parole immediately.

That doesn't mean he is going free in the United States. Covarrubias faces deportation because he is here illegally, having emigrated from Mexico with his family when he was 3 years old.

And because of the felony battery by a prisoner conviction, Covarrubias will have to face a judge on an immigration hold by federal authorities.

After the sentencing hearing, Sanft said he was disappointed in the verdict.

An appeal is being planned based on the self-defense issues.

Sanft acknowledged the passion that prosecutors had in this case.

"They wanted one last shot at the apple, and they tried by getting Covarrubias as much time as possible while they could," Sanft said.

Still, Mercer's statement that not everyone acquitted is innocent caused Sanft concern.

"That's a dangerous position to take if you're a prosecutor," he said. "You're basically saying that anything other than a guilty (verdict) isn't justice. That tells me they don't have faith in the system when it doesn't work their way."

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