High court upholds penalty on judge

Tuesday, Dec. 21, 2004 | 11:05 a.m.

CARSON CITY -- In a split decision, the Nevada Supreme Court today upheld the discipline imposed on District Judge Donald Mosley of Las Vegas, who was publicly censured, fined $5,000 and ordered to attend an ethics course at the National Judicial College.

The Commission on Judicial Discipline handed down the punishment in February 2002 after finding Mosley guilty of seven violations. The state Supreme Court, however, ruled this morning that the evidence showed violations only on five of the seven counts.

The court, in the majority decision written by Chief Justice Miriam Shearing, said there was ample evidence to show Mosley twice violated the judicial code by writing letters on official stationery to the principal of his son's school.

The second three counts, upheld by the court, dealt with Mosley's bitter child custody case.

The case of Joseph McLaughlin, who had pleaded guilty to robbery and burglary, was transferred to Mosley for sentencing. Meetings were held between McLaughlin's attorneys and Mosley and between the judge and McLaughlin himself.

After the meetings McLaughlin and his wife signed affidavits for Mosley to use in his custody case against Terry Figliuzzi, the mother of Mosley's child. McLaughlin was Figliuzzi's landlord.

Mosley did not recuse himself from the case after McLaughlin's wife had testified in support of the judge at the custody hearing.

The Supreme Court said the meetings were inappropriate.

Shearing wrote that "Judge Mosley should have recused himself immediately after he received a telephone call from (attorney Catherine) Woolf notifying him that the McLaughlins had information about his custody case and that Mr. McLaughlin was assigned to his chambers for sentencing."

Woolf wanted Mosley excused from the case because he was known as being tough in sentencing.

Justice Deborah Agosti agreed with Shearing on the majority ruling.

Justices Bill Maupin and Nancy Becker and District Judge Andrew Puccinelli of Elko wrote a concurring opinion in which they said Mosley should have also been convicted of a charge of releasing a criminal suspect without notifying the district attorney's office.

In that case a bench warrant had been issued for Robert D'Amore, who had failed to make restitution payments in a theft case. Robert D'Amore was then arrested.

Barbara Orcutt said she learned that D'Amore, a former employee, had been arrested and she called her friend Mosley to see if he would release the man without bail. She told the judge D'Amore was not a flight risk and D'Amore was concerned about the health of his mother.

Mosley ordered D'Amore released without consulting with the district attorney's office.

Maupin wrote that Mosley "should have never proceeded to release D'Amore on his own recognizance. D'Amore had apparently absconded following entry of a negotiated plea of guilty to a felony and was in custody pursuant to a bench warrant."

Maupin said Mosley had to have known the district attorney would have opposed the release. "In short, this exercise of judicial power had every appearance of an act of favoritism taken without regard to its merits," wrote Maupin.

Justice Bob Rose wrote a separate opinion saying he did not believe there was "clear and convincing evidence" to justify discipline on the count involving the meeting between Woolf, McLaughlin and McLaughlin's wife.

Rose wrote, "Thus it appears that, although Judge Mosley did engage in communications with McLaughlin and Woolf absent the presence of, or notification to, the state, the communications at (attorney Carl) Lovell's office did not pertain to the merits of McLaughlin's pending criminal proceeding."