Trials’ differing verdicts spur high court appeal

Nearly two years ago, Family Court Judge Steven Jones was acquitted of a domestic battery charge after his live-in girlfriend recanted the previous statements she had given in the case.

A month earlier, retired Navy commander Dennis Sarfaty was convicted of the same misdemeanor despite the fact that his wife had recanted her prior statements.

The seemingly conflicting verdicts came from two different judges in Henderson Municipal Court, and Sarfaty's lawyer now wants the Nevada Supreme Court to decide which one was right.

"We believe that the circumstance is urgent, that there's an important area of law in Nevada that needs clarification," attorney Al Lasso said.

After appealing Sarfaty's conviction unsuccessfully in Clark County District Court, Lasso filed a petition June 17 with the state's high court.

"Due to the District Court's error, as well as a split in the rulings of Nevada's lower courts, this court should hold as a matter of law, that prior accusations recanted under oath should be, in themselves, insufficient to support a conviction," Lasso wrote.

The lawyer cited a 1996 ruling from an appeals court in Ohio.

"The Court of Appeals held that the alleged victim's statement to the arresting officer, identifying the defendant as her attacker, which she later recanted at trial, was insufficient to support a conviction," according to Lasso's petition.

The domestic violence charge against Sarfaty stemmed from an argument he had with his wife, Elizabeth, on April 29, 2005. Henderson Municipal Judge Douglas Hedger conducted a bench trial on Aug. 14, 2006.

According to Lasso's petition, Elizabeth Sarfaty testified that she was "very drunk" on the night of the argument and did not remember the incident well.

"Ms. Sarfaty further testified that on that night she was the aggressor as she pushed and shoved Mr. Sarfaty," Lasso wrote. "Ms. Sarfaty further testified that as she shoved Mr. Sarfaty, he positioned his hands on her head to hold her away from him, and that when he removed his hands, some of her hair was caught in his ring."

According to the document, Elizabeth Sarfaty told the judge that the accidental hair-pulling had angered her and that she "reached up and yanked some more hair out." She testified that she placed the hair in her pocket and later showed it to police.

A Henderson police officer testified that Elizabeth Sarfaty told him that her husband had pulled her hair and kicked her.

"The Jones case and the present case are strikingly similar, except in outcome, where the two cases are glaringly disparate, because where Judge Jones was acquitted, Mr. Sarfaty was convicted," Lasso wrote.

After convicting Dennis Sarfaty, Hedger sentenced him to 90 days in jail but suspended 85 of those days. The judge also ordered the defendant to pay a $332 fine, perform 48 hours of community service and complete a six-month domestic battery counseling program.

Hedger granted a stay of the sentence pending the appeal process. District Judge Jennifer Togliatti denied Dennis Sarfaty's appeal in January.

"Mr. Sarfaty is a career military officer, a Navy commander, and the conviction serves to tarnish his reputation," Lasso wrote in his petition to the state Supreme Court. "As such, even though the charge was relatively minor, reversal is warranted."

Lin Ng, the deputy city attorney who represented the city of Henderson when Sarfaty first appealed his conviction, declined to comment on Lasso's petition.

Henderson Municipal Judge Ken Proctor acquitted Jones after a high-profile bench trial in September 2006.

"I'm very familiar with domestic violence," Proctor said at the time. "It's not unusual for a victim to recant when they come to trial."

Nevertheless, he said, evidence in the case portrayed Jones' girlfriend, Amy McNair, as the primary aggressor in the June 20, 2006, dispute. Jones and McNair hugged and kissed outside the courtroom after Proctor announced the acquittal.

Proctor's ruling echoed that of Senior Washoe County District Judge Charles McGee, who refused to extend a temporary protective order against Jones after a hearing in late June 2006. Like Proctor, McGee described McNair as the primary aggressor in the incident.

McNair testified under oath during the hearing in front of McGee and accused Jones of shoving her to the ground during the dispute, which led to Jones' arrest.

The woman told similar versions of the story to authorities several times after the incident.

But at Jones' trial, McNair said she had caused her wounds by rubbing her face against carpet. She said she made the false allegations out of anger after Jones decided to end their relationship.

According to testimony during the trial, McNair's blood-alcohol level was 0.214 percent after the incident. The legal limit for drivers in Nevada is 0.08 percent.

Lasso said he wants the Nevada Supreme Court to find, as a matter of law, "that the credibility of a victim's first statement, which is completely uncorroborated and then contradicted by her sworn testimony, is insufficient to find someone guilty beyond a reasonable doubt."

The lawyer said Elizabeth Sarfaty "testified in the most revered setting in our judicial system, which is under oath at trial."

During the trial, Elizabeth Sarfaty told the judge she and her husband had been separated since January 2006. Lasso said the couple, who have been married for 10 years, are going through a divorce.

The Sarfaty case also exposed problems with the Henderson police 911 system. Henderson officials initially said tapes of 911 calls made on the night of the incident did not exist. However, when the case was on the verge of dismissal because of the missing evidence, they said they had found two of the three recordings.

Lasso raised several legal issues related to the 911 recordings in his state Supreme Court petition.

The lawyer said Dennis Sarfaty, an unsuccessful candidate in the state Senate District 5 Republican primary in 2006, is "very upset" about his misdemeanor conviction "and knows he didn't do anything wrong."

"That's why he's taking it all the way to the Nevada Supreme Court," Lasso said.

He said the state high court needs to establish a "bright-line rule" for lower courts to follow when witnesses change their stories at trial.

"A lot of courts deal with this situation every day," the lawyer said.

He noted that Las Vegas Justice of the Peace Joe Bonaventure recently delayed a preliminary hearing in the domestic violence case of Assemblywoman Francis Allen after her husband, the alleged victim, failed to show up.

Bonaventure scheduled a hearing for today to determine whether Allen's husband, Paul Maineri, will face contempt charges.

Allen is accused of stabbing her husband in the arm with a steak knife. Maineri initially told police Allen stabbed him during a May 17 argument but later said his wound was self-inflicted.

Bonaventure is the son of longtime District Judge Joseph Bonaventure, who retired last year. Lasso worked as Joseph Bonaventure's law clerk.

Contact Carri Geer Thevenot at cgeer @reviewjournal.com or 702-380-8135.