Where I Stand — Brian Greenspun: A judicial door-to-door

Tuesday, Jan. 18, 2000 | 9:55 a.m.

Brian Greenspun is editor of the Las Vegas Sun.

"You will not go judge shopping in the state of Nevada."

So said the chief justice of the Nevada Supreme Court some 25 years ago. By doing so, he stood up to the senior partners of the most well-connected law firm in Nevada, which represented one of this state's most colorful, powerful and controlling personalities, Howard Hughes. And in saying that with the force of law, he sent the message to every lawyer in this state that the practice of picking and choosing judges deemed more favorable to one side or the other would no longer be tolerated.

Before the chief justice made that statement -- which was prompted out of frustration for the blatant way in which Hughes' lawyers were trying to manipulate the judicial system -- it was more or less common practice to shop around the courthouse until a "friendly" judge could be found. Judge shopping was not unique to Nevada but it was a practice long ago shunned by more enlightened states. That it took us a little longer to see the light of reason and justice is one more story for our grandchildren to hear.

I was a young lawyer sitting in the Supreme Court when those words bellowed forth from the bench. I will never forget them, nor will I ever forget what they meant. I also remember what the Supreme Court next said to the lawyers who learned all too quickly that the "fix" was not only not in, but not even close. The court challenged the flustered legal eagles to put up or shut up. In that case it meant that they should file an affidavit alleging bias against the Supreme Court or forget the whole thing. The silence, to this day, remains deafening.

I am reminded of that uplifting day of Nevada jurisprudence so many years ago because of a case which continues to try to work itself through the maze of the Eighth Judicial District Court in Clark County. I am talking about the state of Nevada vs. William Thurman Walters, et al. And I am talking about a deputy Nevada attorney general named David Thompson.

In many respects what Thompson has tried to do on behalf of the people of this state is exactly what the Hughes lawyers were so forcefully admonished would never happen again in Nevada. He, knowing full well that what he was doing was wrong, tried to manipulate the system to move his case against Walters and others out of one judge's courtroom and into that of another. And, some would say, for good reason. Twice before, the judge who had been originally assigned the case had thrown out the indictments as being faulty and not based on a violation of Nevada law. If I had two strikes against me, I'd damn sure look for an easier pitcher to swing against!

But the law is not baseball. And Thompson should know better. And if not Thompson, then his boss, Attorney General Frankie Sue Del Papa, should not only know but understand the gravity of the offense against justice that she has proffered against the judiciary of Nevada. I wrote last year to warn Frankie Sue about the dangers of a deputy run amok. Obviously, she didn't listen to me and others who were concerned that her office was being used by a lawyer interested more in a name for himself that in doing justice for the people who live in Nevada.

As if to make a point of the new year and the new century, Chief District Court Judge Lee Gates got out of a sickbed the other day to make his ruling on the state's motion to remove the Walters case from Judge Donald Mosley's courtroom -- where it had been twice before and twice before had been dismissed by the judge. The court rules demand that a case, once assigned to a particular judge, shall stay with that judge until it is finally over. Since he was 0-2 in Mosley's courtroom, Thompson tried a little judge shopping.

In order to pull that off, however, he had to lie about the nature of the third indictment. And he had to lie to Judge Gates. Oops!

It is obvious to me that neither Thompson nor his boss, Del Papa, had a clue about Nevada's aversion to judge-shopping. How else can you explain the fact that, according to Gates, Thompson was less than truthful to the court in his effort to remove Mosley from the case? And how else can you explain the necessity for one of the defense attorneys to place in a sworn affidavit references to McCarthy-like tactics and surreptitious surveillance of sitting judges without a hint of probable or other cause.

When defense counsel John Moran uses a phrase like, "A glaring abuse of police power at the hands of an unscrupulous prosecutor reminiscent of the recent Bill Bible witch hunt," it becomes abundantly clear the extent to which a prosecutor might go to win at all costs. I am especially struck by John's affidavit, which accuses Thompson of "nothing more than an extorted and unlawful attempt to bypass Court process ... in an attempt to improperly and maliciously tarnish the reputations of Affiant ... but also to coerce and force a well-respected District Court Judge from performing his lawful sworn duties ... for the purposes of forum shopping ..."

We don't ever have to get to the substance of the Walters case to understand the great damage the attorney general has allowed to occur to our judicial system. It is bad enough that the voters think less of our court system than they once did. Now we have an elected official of our government trying to circumvent the law and common sense and, in doing so, sending a message to the people that judges are corrupt and can't be trusted.

I say that if that is true, if Thompson and Frankie Sue believe that the judge in this case is unworthy or biased, let them file the affidavit alleging prejudice. Let the hearing be held and let the judge rule according to the law. But don't, for heaven's sake, try to do what the rich and powerful Hughes and his lawyers tried to do so many years ago. They tried to buy the judiciary in this state by threatening and cajoling, and by doing so they tarnished every judge and court in Nevada.

A quarter of a century ago a Supreme Court told them they were wrong in much the same way as Gates has told the attorney general today. Thompson's action, including his deceit -- as a top law enforcement officer of the court and Nevada -- is hardly a model for the rest of Nevadans who look to our justice system as the last bastion of hope and freedom.

Grab ahold of this case, Frankie Sue, before it gets worse. Don't shop for judges, shop for truth. It was good advice for Howard Hughes and his lawyers in the 20th century, it should be good enough for you and your deputy at the beginning of the 21st!