Appeal to release jailed ex-cops filed with high court

Cathy Scott

Tuesday, Dec. 2, 1997 | 10:14 a.m.

An appeal of a decision to jail three former Metro Police officers was to be filed today with the Nevada Supreme Court in an effort to have them released.

The 20-page document, filed by the attorneys for former Sgt. James Campbell, was delivered today by Andy Anderson, president of the Police Protective Association.

Anderson said he's hopeful the Supreme Court will overturn the decision by District Court Judge Lee Gates to jail the three on charges that they roughed up a petty coin thief suspect at the Fremont hotel-casino.

"We want them out of jail next week," Anderson said. "They've already spent Thanksgiving in jail. We're going to do whatever we can to get them out as soon as we can. It's beyond Judge Gates now. It's beyond Metro. It's up to the Supreme Court. We'll deal with Gates later."

If the case is heard by the Supreme Court, Bill Terry, representing Campbell, said he believes the three will be released "within days."

The appeal states that Campbell and former Officers Brian Nicholson and Robert Phelan were "illegally sentenced" to jail by Gates.

A second document was also to be filed with the high court today asking that the trio be released on their own recognizance pending the outcome of the appeal.

Gates accepted no-contest pleas in October. In exchange, the former cops were promised by the district attorney's office they would be sentenced to community service, a fine and probation.

Instead, Gates ignored the pleas and two weeks ago sentenced Campbell and Nicholson to nine months and Phelan to six months in jail. When the Clark County Detention Center authorized the men to be released on house arrest, which would have allowed them to leave their homes only to work, the move was denied by Metro and Gates.

The former officers were indicted in 1995 on charges of oppression under the color of law after a confrontation with 40-year-old Andrew Dersch in a security room at the Fremont. Dersch was cut on his forehead when he hit a table during the confrontation where he refused to give his name to officers. The incident was videotaped on a security surveillance camera.

Campbell, 49, retired from Metro and Nicholson and Phelan, both 28, were fired.

The three were convicted last year, but the verdict was thrown out because of a juror's previous history with police, which he failed to disclose, and pressure he gave the other jurors to convict.

After the trial, Sheriff Jerry Keller sent a letter to Gates asking that he not give the former officers jail time.

"Realistically, their convictions and termination by the department will prohibit them from ever again obtaining a job in law enforcement or a related field ...," Keller wrote. "I would urge you, when determining their sentencing, to consider giving the officers probation ..."

The appeal also states that when the former cops entered their pleas on Oct. 13, Gates accepted them without indicating his intention to incarcerate the men and did not mention his dissatisfaction or objection to the pleas.

On Nov. 17, he ordered the men jailed. The appeal alleges that "Judge Gates was in error (by) adding the phrase 'no house arrest' illegally (and) as an afterthought." Amended sentencing orders for the three, filed with the district attorney's office, show "no house arrest" typed in smaller letters on each order.

The appeal also claims that the judge "divested the sheriff of power in his position as the individual in charge of the Clark County Detention Center...." By state law, the sheriff is the custodian of the jail and its inmates.

Campbell, Nicholson and Phelan said from jail last week that Gates, their attorneys and a deputy district attorney encouraged them to plea bargain.

Gates also didn't tell the court why he sentenced the men to jail and gave no reason why he deviated from the plea negotiations, the appeal says.