Mosley’s lawyer: Judge didn’t get fair hearing

Tuesday, Nov. 11, 2003 | 9:21 a.m.

SUN CAPITAL BUREAU, CARSON CITY -- District Judge Donald Mosley didn't receive a fair hearing when the state Judicial Discipline Commission fined him $5,000 and issued strong letters of censure for violations of the judicial code, his lawyer has argued in briefs.

Mosley's lawyer, Dominic Gentile, says the state commission "behaved as both advocate and judge to the prejudice of Judge Mosley. The judge's due process rights were violated." The evidence "failed to meet the clear and convincing standard," Gentile wrote in a pre-hearing brief to the Nevada Supreme Court.

Mary E. Boetsch, special prosecutor hired by the discipline commission, argued there was ample evidence to justify the judge being found guilty of seven violations of the code, involving meetings with one side that were improper because the other side was not present and writing a personal letter on official court stationery.

The Supreme Court will hear arguments Wednesday on Mosley's appeal. Mosley is asking the discipline commission's 2002 decision be overturned.

One allegation involved a private meeting between the judge and his longtime friend and attorney Barbara Orcutt, who asked that her employee and friend Robert D'Amose be freed from jail, where he was being held on a charge of theft. Orcutt told the judge D'Amose was in poor health.

Mosley determined D'Amose would not be a threat to the community. The judge talked to District Judge John McGroarty, who had issued the bench warrant and was assigned the case. McGroarty told Mosley he had no objections but suggested Mosley check with the district attorney's office before freeing D'Amose, who was being held for theft.

But Mosley did not contact either the district attorney's office or the defense lawyer before he released D'Amose on his own recognizance. The judge was accused of ex-parte communications and using his judicial power to benefit the interest of a friend.

On this allegation the commission decided Mosley should receive a "strongly worded censure" because he did not follow the practice of requiring all parties be notified of such meetings.

The Nevada District Judges Association filed a "Friend of the Court" brief on that count, saying it has been a "longtime practice for district judges to make and receive ex-parte communications from persons within and without the criminal justice system and to make decisions regarding bail or release of prisoners based upon those communications without convening a hearing at which the prosecuting attorney and the criminal defendant and his attorney are present."

The association said the district attorney's office is notified of the bail decision and has a chance to contest the issue later.

The association, represented by attorney Harold B. Thompson, said the Supreme Court should adopt "a recognition of the pretrial necessities facing our district judges" and adopt a "more liberal interpretation of the canons" of judicial conduct in permitting these meetings.

Mosley was also accused of holding a private meeting with attorney Catherine Woolf, who represented Joe McLaughlin, who had pleaded guilty to a felony and was awaiting sentencing in August 1997.

Mosley at the time was locked in a custody battle for his son with the boy's mother, Terry Mosley, his former girlfriend. McLaughlin allegedly said he been living with Terry Mosley and that she was not a good parent.

McLaughlin signed statements for Mosley used in the custody battle. Mosley did not recuse himself from the McLaughlin case until Oct. 10, 1997, the first day of the custody hearing.

The commission found that Mosley should have recused himself from the case sooner and that he held ex-parte meetings, without the other side being present. It fined Mosley $5,000 and ordered it be paid to the Clark County Law Library. The commission also issued a letter of censure and ordered Mosley to take an ethics course at his own expense at the National Judicial College.

The commission also said Mosley violated the canons of judicial conduct when he wrote a letter on official stationery to officials of his son's school. The letter concerned his court battle with the mother over custody of the child.

The arguments before the Supreme Court are scheduled to last 30 minutes and the court will rule at a later date.