Columnist Jeff German: Traffic case raises questions of favoritism

Friday, Aug. 9, 2002 | 5:32 a.m.

THERE'S A LITTLE ticket that thousands of drivers across the state get -- it's called failure to exercise due care on the roadways.

The misdemeanor citation often is handed out following an accident if an officer thinks a motorist's speed was a contributing factor.

Most people don't have the time to fight the ticket. They pay the $185 fine in court and go to traffic school to avoid the four points on their driving record.

That's not what you do, however, if you're Ben Little, the chief criminal prosecutor for the city of Las Vegas.

If you're Little, you use all legal means and muscle at your disposal, no matter how much time it takes, to challenge the ticket. Then you get a hearing before a judge who once worked for you and get her to throw it out. Now and forever.

For more than a decade, Little never once questioned the legality of the familiar due care statute until he was ticketed in March for not showing due care during a minor accident with a school bus at the Lakes.

Since March, while his staff has continued to prosecute due-care cases against other motorists, Little has moonlighted as a defense attorney, spending hours poking holes in the law to win his case.

His efforts paid off on June 25 when Municipal Judge Jessie Walsh, who worked under Little from 1993 to 1995, dismissed his citation for lack of probable cause and prevented a special prosecutor, who called Little's defense a "piece of crap," from taking further action against him.

The dismissal left Little's boss, City Attorney Brad Jerbic, in a quandary. How could Jerbic pursue the hundreds of other due-care cases waiting to go to court while his top criminal supervisor just got a pass? How good would that look to the public?

So Jerbic decided to suspend all due-care prosecutions until he receives a legal opinion on the constitutionality of the law from the attorney general. Metro Police, however, said they're still writing new citations.

Jerbic explained that he came to the conclusion the statute was bad after reading a 1984 Washington Supreme Court case dug up by Little. The Washington court had tossed out a due-care law similar to Nevada's.

It's amazing, in this era of the Internet, that defense lawyers who routinely fight the due-care law have never been able to uncover this case.

What a stroke of luck for Little.

If only Little had collided with a school bus in 1992 when he became chief of the criminal division. Think of all the tickets that never would have been written and the headaches motorists could have avoided.

"The irony hasn't escaped me," Jerbic said. "The Washington case has been out there for a very long time. It's not necessarily something a prosecutor would have become aware of."

Little isn't talking.

But Jerbic said he's convinced that Little, as a prosecutor, would have raised questions about the legality of the law earlier if he had heard about it from a defense lawyer.

"I'm sure he would have come to me and said, 'Look we have a problem here,' " Jerbic said. "He's a very ethical individual."

He's also very adept at defense lawyering.

During a June 25 hearing before Walsh, Little relentlessly attacked the due-care law, calling it overly broad and vague. As he spoke he knew that deputies in nearby courtrooms likely were advocating the opposite position.

At one point Little even suggested that due care was a catch-all statute designed to help lazy police officers find a charge against a motorist when they can't come up with any other evidence.

Though the special prosecutor, Joseph Scalia, pointed out that Little's argument appeared "incoherent," Walsh sided with Little. She dismissed the case with prejudice, which means Scalia can't pursue other charges against her former supervisor.

Scalia was so angry that he told the judge her ruling was clearly a "political decision devoid of any connection to the law."

He charged that Little was getting preferential treatment.

"Is he different from any of the other thousands of defendants who walk through this door?" Scalia asked. "Contrary to his belief he is not."

Walsh, a district judge candidate who regularly deals with Little's deputies in her courtroom, scolded Scalia at the hearing for "falsely" accusing her of showing favoritism.

Today Walsh insists that she had no reason to remove herself from the case.

"We have an obligation to hear these cases unless we feel we can't be impartial," she said. "And I felt I could be fair."

Still, professor Jeff Stempel, who specializes in ethics at the Uinversity of Nevada, Las Vegas, William S. Boyd School of Law, suggested Walsh probably should have bailed out.

"It wasn't in my mind the most prudent way to approach this," he said. "It would have been a better course to avoid any question by passing it along to another judge."

Walsh obviously put a lot of time and thought into her decision.

But would she have taken this much interest in the case if Little was just an Average Joe who didn't have an inside track at the courthouse?

And what about Little?

Has Little, the prosecutor (not the defense lawyer), learned the meaning of fairness through this experience?

Or does he have to get another ticket before he opens his eyes to another bad law?

archive