Judge’s recusal stirs up Walters case

Martin Kuz

Tuesday, April 11, 2000 | 11:18 a.m.

The subdued demeanor of District Judge Donald Mosley belied the jaw-dropping jolt he delivered Monday when he stepped down in the money-laundering case of professional gambler and golf course developer Billy Walters.

Mosley's surprise recusal comes less than a month after he fought off the efforts of prosecutors to remove him from the case amid allegations he was overtly partial to the defense.

Mosley explained his decision by saying "the public trust has been so eroded by news accounts of this case that no decision ... would be viewed ... as being made purely on the merits" if he continued presiding.

The Nevada attorney general's office sought Mosley's ouster from the case soon after obtaining an indictment against Walters and three other men in November. They are accused of routing money to and from illegal bookmakers across the country through Sierra Sports Inc., a company owned by Walters.

Prosecutors doubted Mosley's impartiality from the start because he dismissed two previous grand jury indictments against the politically connected Walters. The judge is also a friend of John Moran Jr., one of the defense attorneys involved in the case.

Chief District Judge Lee Gates, citing "no evidence whatsoever" of bias, denied the prosecution's motion to remove Mosley at a disqualification hearing in mid-March.

But Gates' ruling is nonbinding in the court of public opinion, a fact Mosley noted at the outset of Monday's scheduled arraignment of Walters, James Jay Hanley, Daniel Pray and John Tognino.

"If I should rule in favor of the defendants, it (would) be perceived as confirmation that I favor the defendants or that I do harbor ill feelings against the prosecution," Mosley said.

"If I rule in favor of the state, the argument would be that I am attempting to make amends for past transgressions or (to) avoid another round of challenges to my objectivity."

Mosley, appearing calm and speaking in a low, steady voice, stunned attorneys for both sides with his announcement. They had little to say immediately after he ordered the case randomly reassigned to another district judge.

"I have no comment other than it was a surprise," Deputy Attorney General David Thompson said.

Added Walters' attorney Richard Wright: "I need some time to digest this."

Wright later said in a phone interview that he would search for a "remedy" to Mosley's decision.

"I understand the judge's position -- you can't dispute that he's conscientiously trying to do the right thing. But basically what occurred is that the attorney general's office -- through, in my judgment, misconduct -- achieved what they wanted to do, which is recusal of the judge," Wright said.

In contesting Mosley's impartiality during last month's disqualification hearing, prosecutors presented his friendship with Moran as damning evidence.

The two men have gone hunting together on several occasions -- a point hammered home by an airport surveillance tape that showed them returning from a recent hunting trip to Texas. In addition, Moran testified on the judge's behalf six years ago in a bitter custody fight between Mosley and a former girlfriend over their son.

Mosley also faced accusations of feuding with Metro Police detectives handling the Walters case. Prosecutors charged that he became upset with an officer who refused to sign an affidavit that discredited allegations made by unidentified parties against Mosley.

Nevada law does not prohibit friendship between lawyers and judges. Mosley took a broad swipe at prosecutors for creating a "perception of bias" on that count.

The judge referred to the "reckless zeal and overstepping of the bounds of propriety certain individuals responsible for prosecuting this case have used thus far in their quest for successful prosecution."

Mosley, acknowledging his reluctance to step down for fear of leaving the impression he had simply given up, later added, "I am not a quitter."

Moran said Mosley's recusal wrongly rewards prosecutors for their tactics, and will embolden the attorney general's office to "forum shop" -- a legal term that refers to seeking reassignment of a case to another judge.

"What they've done is put a fair and impartial judge in a position where he felt he had to recuse himself based on unfounded and unsubstantiated charges," Moran said. "This sets a dangerous precedent where they can forum shop and abuse their political power to obtain those results whenever they want."

Gates originally assigned the Walters case to another district judge based on Thompson's assertion that the latest indictment differs substantially from the previous two that were thrown out by Mosley on technical grounds.

Defense attorneys, arguing prosecutors were engaged in improper forum shopping, convinced Gates to reassign the case to Mosley after showing the third indictment mirrors its predecessors.

The arraignment for Walters, Hanley, Pray and Tognino has yet to be rescheduled.

While stepping down from the Walters case eases one headache for Mosley, another looms in the form of a complaint filed last month with the state Judicial Discipline Commission.

The complaint alleges Mosley misused his office in 1997 by giving preferential treatment to a criminal defendant in exchange for his help in the custody struggle with his ex-girlfriend.

Mosley has until Wednesday to file a response to the charges.