Judge’s conflict disrupts murder case

By Matt Pordum (contact)

Wednesday, Aug. 18, 2004 | 8:54 a.m.

The prosecution of a 37-year-old man accused in the fatal beating of a retired Air Force major may have been sent back to square one by Las Vegas Justice of Peace Douglas Smith on Tuesday.

Although Smith had already seen Raymond Garrett at his arraignment and at the start of the preliminary hearing on July 19, Smith announced Tuesday that he now remembered that he prosecuted Garrett for a prior burglary arrest.

While serving as a deputy district attorney, Smith represented the prosecution at Garrett's 1991 sentencing in the prior case and represented the state when Garrett entered his guilty plea.

Garrett pleaded guilty to one count of burglary and was sentenced to eight years in prison.

Now Garrett is accused of killing 51-year-old Michael Born. Garrett is also charged with two counts of battery, five counts of robbery and one count of conspiracy to murder.

Deputy District Attorney Mary Brown said it would be up to Las Vegas Justice of the Peace Nancy Oesterle to decide if she feels comfortable using the transcripts for witnesses who already testified in the preliminary hearing on those charges or whether she will start the preliminary hearing over again.

Oesterle is to take up the matter Friday morning.

Special Public Defender David Schieck said Smith had no choice but to recuse himself.

"This is nothing negative against Judge Smith. He just happened to prosecute that case," Schieck said. "In a case like this, if he (Garrett) is convicted, they'll be looking at this. If we went forward, years later we might have to start all over again."

Police allege Garrett beat and robbed Born in the parking lot of a Wal-Mart store at Stewart Avenue and Nellis Boulevard on June 2 while Born was changing a headlight on his car.

Born, the father of a young daughter, died June 15 at University Medical Center after being on life support for more than two weeks.

Prior to Smith's realization that he had previously prosecuted Garrett, another alleged victim of Garrett's testified on Tuesday.

Hector Mendoza identified Garrett as the man who on Feb. 10 assaulted him in front of the Vons grocery store on West Sahara Avenue.

Mendoza said as he was leaving the store, Garrett pulled up alongside him in a car and asked him if he had change for a $20 bill. Mendoza said yes, and pulled out his wallet. While he was doing this, Mendoza said, Garrett got out of the car and approached him.

Mendoza said the next thing he remembered was being awakened by police officers.

Daniel Shear, who was shopping at Vons that day, testified seeing Garrett.

"He (Garrett) hit him (Mendoza) with a closed fist," Shear said. "It was a full force punch and he (Garrett) pulled back low and punched in a downwards motion. As soon as the victim was hit he went limp and hit his head on the sidewalk."

Shear said he and a friend rushed over to "break up the fight" and saw Garrett take what appeared to be Mendoza's wallet and cell phone. He said Garrett then ran toward his car and drove away, but not before Shear was able to memorize his license plate.