A Sept. 24 Review-Journal editorial, “Out of order,” concerned a recent Nevada Supreme Court decision in which the majority justices accused a prosecutor of “egregious” conduct. I am that attorney and would like to respond.
The case involved the former CEO of University Medical Center, Lacy Thomas, who in 2007 was charged with five counts of theft and five counts of misconduct. His 2010 trial ended in a mistrial when the defense argued that it had not received certain potentially exculpatory documents.
The Supreme Court decision not to allow a retrial of Mr. Thomas was based on the assumption that I, as the prosecutor, was responsible for withholding evidence. This is not true, and my reputation in the community has been trashed.
I absolutely did not know of the existence of those documents until the middle of the jury trial wherein Mr. Thomas’s attorney began referring to them. I unequivocally state not only had I never seen them before, but to this day I have still never seen them. Metro had misplaced them — which was understandable, given the incredible volume of documents this case entailed — according to what they told me. The documents had never made it to the DA’s office. Therefore, I committed no prosecutorial misconduct whatsoever, and I absolutely did not withhold documents from the defense of any kind, let alone allegedly exculpatory ones.
Although seven years have gone by since the mistrial, neither Dan Albrechts, the defense attorney on the case, nor anyone else has ever filed any ethics complaint against me for such purportedly egregious behavior. Any attorneys who really believed I was guilty of such treachery had a moral obligation to file a complaint with the state Bar.
I recognize that the RJ editorial was relying for its facts on the state Supreme Court opinion issued Sept. 14. I also recognize that you might reasonably feel comfortable relying on that court’s factual findings as being true. In this case, however, the court’s factual findings, which you adopted, were utterly and entirely false based solely on testimony of a Metro police officer who said he twice gave the documents to me long before the trial started.
I was never notified that an evidentiary hearing on the issue was taking place. From the day of the mistrial in 2010 through Sept 25, I was never at any time notified by the district attorney’s office or any other entity, including the defense team, of a single hearing held in the Lacy Thomas case. I retired after 30 years in the district attorney’s office in July 2014, but my phone numbers, email address and physical address have been the same for many years.
The defense, if they had sought the full truth, would have subpoenaed me to testify to what they already had previously acknowledged to be true: that I had no knowledge of the documents. Apparently, it didn’t occur to the DA to do this, absorbed in the effort to just prevail at the hearing.
This is extremely important to note, because the Nevada Supreme Court repeatedly referred in its majority opinion to my failure to rebut allegations made during the hearing. The court specifically said that it drew a negative inference from this failure, an inference the justices are not allowed to draw when a criminal defendant fails to testify in his own defense. But in my case, not only did the court infer guilt and pointedly decide the case on that inference alone, the justices never even bothered to ascertain whether I was aware of the hearing at all.
Even though the District Court judge denied the motion to dismiss and found no evidence of willful misconduct on my part, the record still contained testimony from said police officer, which the district attorney didn’t have any witnesses present to rebut. As a former district attorney myself with 30 years of experience, I understand how easily oversights can happen in this situation. The district attorney had achieved his or her immediate objective, preventing dismissal of the case. The office has a heavy caseload. They may fail at that point to appreciate the magnitude of what has just happened — an innocent prosecutor has just been accused of extremely serious misconduct, the kind that can get you fired and your license taken away from you, and no rebuttal has been proffered.
But the seeds of my ruined reputation were already sown. The prosecutor should have insisted that the state be allowed to refute the allegations, and I should have been asked to come down to the courthouse and testify. The majority opinion of the Supreme Court implied, with no factual support in the record, that the state had been presented with a chance to rebut the testimony and declined. The majority opinion was wrong.
Justice Kristina Pickering, who strongly dissented from the majority’s factual and legal analysis, saw this case accurately because she took the time to thoroughly familiarize herself with the record. You simply cannot assume the Nevada Supreme Court got the facts right because they’re the Nevada Supreme Court. In this case, they were spectacularly wrong, and they callously made me their victim.
Scott S. Mitchell is a former Clark County chief deputy district attorney who retired in 2014.