Prosecutors’ remarks anger high court justices

Wednesday, Oct. 17, 2001 | 9:40 a.m.

CARSON CITY -- Justices of the Nevada Supreme Court fumed Tuesday over improper remarks prosecutors in Las Vegas and Reno have made to juries in criminal trials.

The justices expressed their frustration during oral arguments on the appeal of Charles Lee Randolph, sentenced to death for the execution style slaying of Las Vegas bartender Shelly Lokken, who was shot twice in the head during a robbery.

Justices, who say the remarks jeopardize convictions, singled out Deputy District Attorney William Kephart of Clark County for criticism. Kephart handled the Randolph case, and Justice Bob Rose said Kephart has been involved in other cases that involved allegations of misconduct by the prosecutor.

"Either he (Kephart) doesn't want to learn or he's a slow learner," Rose said. "One prosecutor doesn't seem to get the word."

Curtis Brown, chief deputy public defender for Clark County, told the court that Kephart during closing arguments told jurors that if they had a "gut feeling he was guilty, then he's guilty." That statement, Brown said, is a misrepresentation of the law that defines reasonable doubt.

It may have been an "improper statement," said David Wall, deputy district attorney for Clark County, but it was not prejudicial enough to overturn the conviction. He said the jury was told by the judge to pay attention to jury instruction involving reasonable doubt.

That argument touched off the criticism, as Chief Justice Bill Maupin noted Kephart was an experienced prosecutor. "He knows the rules," Maupin said. "This is exactly something that merit reversals in close cases."

Randolph had already conceded a charge of first-degree murder, Maupin said. "It was not necessary to go to this length to jeopardize a good conviction."

Randolph was a two-time convicted felon at the time of the killing. His partner, Tyrone Garner, who waited outside and drove the get-away car, was convicted of first-degree murder and received a life term in prison.

Justice Cliff Young said the prosecutors have been warned before, but suggested they may be fined $10,000 for making improper remarks in the future.

"Why does it continue to happen?" Justice Nancy Becker asked, referring to prosecutors in general.

In past cases, such statements have been termed "harmless error," and the convictions were upheld. Maupin said the court is now talking about considering such statements "plain error," which could overturn the conviction. "This case is not an isolated instance."

Prosecutors, said Maupin, seem to want to "test the outer reaches" of what they can get away with in their arguments. Warnings haven't seemed to work, he said.