Nevada Supreme Court rules three former cops can serve jail time under house arrest

Friday, April 10, 1998 | 11 a.m.

CARSON CITY -- The Nevada Supreme Court ruled today that three former Metro Police officers may serve their terms under house arrest for a confrontation with a petty coin thief at a downtown Las Vegas hotel-casino.

The 4-1 decision District Judge Lee Gates said was wrong when he amended his sentence to prohibit house arrest for former Sgt. James Campbell and former officers Brian Nicholson and Robert Phelan.

Campbell and Nicholson were ordered to serve nine months in the Clark County Detention Center for their conviction of one count of conspiracy to commit assault with a deadly weapon, a gross misdemeanor. Phelan received a six- month term on his conviction of battery and obstructing a public officer, both misdemeanors.

After the sentencing, Metro was in the process of placing the officers on house arrest when Gates amended his order to prohibit house arrest. The high court said Gates lacked authority to change his order. After serving 18 days in the jail which is run by Metro the three men were released on house arrest.

"We conclude that (District) court lacked jurisdiction to amend the judgments once appellants began to serve their sentences," the court said.

Chief Justice Charles Springer, in his dissent, said the law was clear that the sentencing judge has the power to enter an order at any time to change the terms of the sentence.

"It makes no sense to me that a jailer and not the judge would be given the power to decide how prisoners must serve their jail sentences -- confined to jail or in the comfort of their own homes," Springer wrote.

Springer also criticized Clark County Deputy District Attorney James Tufteland who represented Gates in the controversy. He said Tufteland betrayed his client and offered only the flimsiest of arguments on behalf of the judge.

"The deputy district attorney's successful opposition to his client's position is at least partially responsible for this court's clearly incorrect ruling that deprives sentencing judges of their power under NRS 211.250 to order confinement rather than house arrest."

Tufteland argued the judge lost his power to change the terms of the sentence once the three started their house arrest terms.

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 Hotel. A previous cut on Dersch's head was opened when he hit a table during the confrontation when he refused to give his name to the officers.

Campbell retired from the police force and Nicholson and Phelan were fired. They pleaded no contest to the allegations. The court earlier had issued a stay of Gates' order to put the three in jail, while it decided the case.