Prosecutors have immense power and discretion within the criminal justice system. The abuse of that authority not only undermines the administration of justice, it erodes public confidence in our legal traditions.
All this comes to mind in the wake of a recent Nevada Supreme Court decision involving the former CEO of University Medical Center, Lacy Thomas. Back in early 2007, Mr. Thomas was fired after county officials learned he was under criminal investigation and that the hospital had lost more than $34 million the previous year. The Clark County DA’s office — led at the time by David Roger — eventually charged him with five counts of theft and five counts of misconduct, alleging he steered no-work contracts to friends.
Mr. Thomas’s reputation was in tatters.
The case, however, ended in a mistrial in 2010 after it was revealed that certain evidence favorable to Mr. Thomas never made it into the hands of his attorneys. And on Sept. 15, the state high court ruled that Mr. Thomas’s constitutional protections against double jeopardy prevent the DA’s office from pursuing a retrial. Disturbingly, the decision also raised serious concerns about the conduct of the prosecutor, Scott Mitchell, and whether Mr. Thomas should ever have been charged in the first place.
The evidence that prompted the mistrial applied to one of the 10 charges and involved documents showing that one of the contracts had indeed been legitimate. During a hearing regarding the circumstances of the mistrial, a Metro police sergeant revealed under oath that he had turned over that information to the DA’s office. A Metro detective further testified that the content of the documents had led him to recommend that no charges be brought against Mr. Thomas regarding that specific contract.
But not only did prosecutors ignore that advice, they neglected to give the documents to the defense team, as required. The Supreme Court noted that “the state offered no explanation at the evidentiary hearing for its failure to disclose the documents” because no one from the defense team opted to take the stand. Not only that, the opinion pointed out, “when the issue of the withheld binder of documents arose during trial, Mitchell repeatedly informed the district court that he had never seen the documents before.” His statements “were directly contradicted by the testimony presented at the evidentiary hearing” which “strongly indicates that the failure of the prosecution to disclose the documents was intentional.”
The justices concluded that the prosecutor’s behavior was egregious enough to trigger double jeopardy protections. “All evidence before the district court in this case suggests that the prosecutor intentionally and improperly withheld exculpatory documents,” the court’s majority determined.
A prosecutor who engages in this type of misconduct not only impugns his profession, he telegraphs the weakness of his case. Mr. Roger last week told George Knapp of KLAS-TV that it’s “not clear” what happened regarding the documents in question. That’s convenient dissembling. When asked whether justice was done in regard to Lacy Thomas, he responded, “Not at all.”
Mr. Roger is correct — but not as he intended. A decade-old cloud over Mr. Thomas has lifted, and he will now attempt to rebuild his standing. But justice demands that those who intentionally compromise the integrity of the justice system be held accountable. Prosecutors enjoy virtual immunity for most conduct carried out under the color of office. But at the very least, the State Bar of Nevada should take a hard look at the behavior of a former chief deputy district attorney whom the Nevada Supreme Court has determined willfully abused his powerful position.