Prosecutor says jury should have heard case

Monday, Dec. 6, 2004 | 11:01 a.m.

CARSON CITY -- The impeachment allegations against Controller Kathy Augustine should have been heard by a jury in a courtroom and if they had been there probably would have been a different outcome, the prosecutor of the case said this weekend.

Special Prosecutor Dan Greco said he was thrilled to get Augustine convicted of one count but disagreed with the Senate that let the controller off on two other counts. A conviction on all three counts could have led to Augustine's removal from office.

Greco, a chief deputy district attorney in Washoe County, said this matter should have been a criminal case in front of a jury, rather than in the Legislature.

"A jury of lay citizens would be a more favorable forum for me than the Senate," he said. "The alleged conduct would have offended a lay jury more than the Senate."

Greco, who was appointed less than three weeks before the trial as special prosecutor, said the state attorney general's office did a good job of investigating the case. But he said the only criticism of the attorney general's office is that there had been "too much negotiation and not enough confrontation."

Gerald Gardner, chief of the criminal section in the Attorney General's Office, testified about months of negotiations with defense lawyer John Arrascada over whether the charges should be criminal or filed with the ethics commission. And they bargained over the language in the charges.

Greco said it is rare that a prosecutor negotiates before filing the charges. Once the case is filed, then the negotiations traditionally begin, he said.

Dominic Gentile, one of Augustine's lawyers, said he did not think the controller should have been convicted of the third count.

Asked if he thought the outcome would be different if it went to a criminal jury, Gentile replied, "It depends on what county. If this case went before a criminal jury in Carson County where they have so many government workers, then it could be problematic, although I think they too would have rejected the credibility of Jennifer Normington and Jeannine Coward."

Normington and Coward were key prosecution witnesses and were former employees of the controller's office.

"It would be easier to get an acquittal in Clark County. They would have seen this was a collusion between two people who are disgruntled and not just disgruntled but also seeking revenge," Gentile said.

The Senate trial was entirely different from a criminal trial, Gentile noted.

"First of all you have 21 really intelligent people and a collective wisdom greater than that. And they ask questions and they are intelligent questions," he said. "They understand the law and you don't need to instruct them on it."

Normington, who was Augustine's executive assistant and was the main prosecution witness in the case, said, "I am obviously disappointed that some senators doubted my veracity as well as my intentions, and therefore threw out my 5 1/2 hours of testimony and the physical documentation associated with it.

"I swore to tell the truth and did so. If I wasn't believed there is nothing I can do about it," Normington said in a prepared statement.

Normington testified that she was forced to spend most of her state time doing political chores for Augustine in 202. Coward could not be reached for comment.

Senate Majority Leader Bill Raggio, R-Reno, said he had "difficulty accepting the fact that she (Normington) did not consider herself a volunteer for Kathy Augustine." He said Normington changed jobs to "serve somebody politically active." Normington even made campaign speeches, he said.

Normington was an unclassified employee who had no civil service protections. A legal opinion by the Legislative Counsel Bureau said that unclassified employees can engage in political activity but can't use state resources for campaigns. Normington testified she used state equipment and the state computer for Augustine's campaign.

Normington said, "I came forward because I do not believe any elected official has the right to force her employees to break the law. The price of speaking out has been high, but how does one put a price on principles?"

Gentile said the conviction of Augustine on the misuse of the office equipment was the "least serious" allegation but the prosecution had the strongest case on that count. He said the use of the equipment was not pervasive and he suggested the decision by the Senate was a "compromise."

Greco argued that Augustine should have been suspended for two months without pay on her conviction. Gentile suggested a censure, which the Senate agreed to.

During his argument to the Senate, Gentile said Augustine now bears the "scarlet letter of impeachment."

But after the Senate vote, Gentile said he thought Augustine still has a political future if she wants one.

He said the censure showed this was not a grievous offense, "and, frankly, that goes a long way towards allowing Kathy to have a political future."

Gentile said the trial, which was televised throughout the state, showed the Attorney General Brian Sandoval's office was overzealous in using the threat of criminal prosecution and had been "looking for a big scalp."

"If the prosecutor (the attorney general's office) would have seen this for what it is, you cannot tell me we would have been here (in a Senate trial). But the prosecutor didn't test the credibility," of the evidence, Gentile said.

Jeannine Coward, former assistant controller, said the big losers in the Augustine decision are the employees in state government.

"After the light sentence, state workers will be wary of complaining about elected officials," Coward said in a statement released today.

She said "the issue that fostered this process has still not been addressed and that is how to help the employees of the controller's office that endure verbal abuse on almost daily basis."