Senate proceeding with Augustine trial

Tuesday, Nov. 30, 2004 | 11:10 a.m.

CARSON CITY -- The state Senate on Monday brushed aside preliminary objections from defense lawyers and voted to proceed with the impeachment trial of Controller Kathy Augustine.

Augustine, accused of misconduct in running her 2002 re-election campaign with state workers and equipment, is the first official to be impeached in state history.

Augustine's attorney objected to the impeachment, and the Senate voted 20-1 in favor of rejecting the motion. Sen. Bob Coffin, D-Las Vegas, was the lone vote in support of the motion.

The Senate scheduled the trial to start Wednesday morning.

After the Senate vote, Lt. Gov. Lorraine Hunt had the Senate sergeant at arms escort Augustine and her attorneys onto the floor and asked her to enter a plea. She pleaded not guilty.

Special Prosecutor Dan Greco said he will start presenting his 10-13 witnesses Wednesday in what is estimated to be a two-week trial. He said the "evidence is so high off the chart" for a conviction that he will ask for her removal from office.

Dominic Gentile, Augustine's attorney, said impeachment is used to protect the public from the office holder and not for punishment. He said the public doesn't need to be protected from Augustine who has run a good state office.

In exhibits submitted to the Senate, the defense said Augustine took a polygraph examination administered by Dennis Arnoldy. In a letter, Arnoldy said he asked her two questions and he said she told the truth.

Augustine said she never pressured anyone in her office to work on her campaign, and she said that her assistant, Jenninfer Normington, worked an average 10 hours a month on the campaign.

Normington, who is expected to be a key witness, has estimated that 75 percent of her time was devoted to campaign work during the closing months of the 2002 election when Augustine was elected to a second term.

The defense has listed 37 witnesses including Augustine and Arnoldy who will testify Augustine passed the polygraph examination. Gentile and co-counsel John Arrascada, in their confidential trial statement, said Augustine was being attacked by "disgruntled employees who had been demoted and reprimanded."

"The evidence will further demonstrate that the statements provided to the Assembly are gross exaggerations demonstrating the bias and dislike of these witnesses," the defense statement said.

In addition, the two lawyers said, "Experts will explain that much of the documentary evidence was more office related than campaign related."

Gentile and Arrascada declined comment on the preliminary loss in the Senate. Arrascada said the rules of the Senate prohibit them from saying anything.

Greco, a Washoe County prosecutor, said he was "very pleased" that the prosecution won on the initial challenge. He said he has had only two weeks to prepare this case after being appointed but is confident he has sufficient evidence to convict Augustine, a Republican.

Coffin declined to explain his action, but said, "My vote speaks volumes."

Coffin had made several statements while the attorneys were arguing the sufficiency of the evidence. He said he watched the procedure in the Assembly and "I got the impression" that the articles of impeachment were written before the Assembly voted.

"The Assembly operated like they didn't need witnesses," said Coffin, referring to the Assembly agreeing unanimously that the evidence against Augustine merited a trial.

"I guess I got poisoned because I listened to the testimony" in the Assembly, he said. The witnesses against Augustine sat together, talked to each other and watched while the other testified, he said. He added he will listen to the new testimony in the Senate and then decide.

Sen. Mike Schneider, D-Las Vegas, voted against the defense but he expressed some reservation on the case against Augustine. Schneider noted that the state Ethics Commission didn't impose the maximum fine of $25,000 rather than the $15,000.

He said the Republican senators were pushing this impeachment, although he didn't elaborate. He said the ethics commission didn't feel it reached the "highest plateau" of misconduct. He said the stories of prosecution witnesses in the Assembly varied.

Gentile argued that Augustine has never been challenged for her competency to run the office. He said her office is collecting $100,000 a month in debts owed the state and she has published a good annual statement.

Gentile intends to present witnesses to show that other office holders did the same thing without ever being charged. He argued that the standard the senators must use is to compare the conduct of Augustine with other constitutional officers such as the lieutenant governor, attorney general and treasurer. Gentile said the defense will show how other officials behaved to show the guilt or innocence of Augustine.

But Sen. Dennis Nolan, R-Las Vegas, said the issue may be what the public expects as a standard of conduct, not what other elected officials do.

Senate Majority Leader Bill Raggio, R-Reno, noted the law says that a constitutional officer could use state personnel and equipment in a limited way and it may not be an offense.

Greco said however the "evidence is overwhelming" and one secretary spent 50 percent of her time in the last six months of the re-election campaign, working on political work for Augustine. There are four workers in the Augustine office that worked on the campaign during office hours and used state equipment, he said.

He said he will "clearly oppose" Gentile and his team of defense lawyers putting on witnesses to compare the behavior of Augustine to other elected officials. "It's irrelevant and not germane to this proceeding," Greco said.

Gentile said the Nevada Constitution requires a person to be guilty of malfeasance or a misdemeanor in office to be impeached. He said malfeasance is defined as malpractice. He said the burden of proof is on the person who made the allegation.

Several senators questioned the standard of proof needed for a conviction. They wondered if it was by a preponderance of evidence, by clear and convincing evidence or proof beyond a reasonable doubt, as used in criminal trials.

A legal opinion from the Legislative Counsel Bureau said the senators are the ones who determine the specific standard of proof in an impeachment trial.

Kevin C. Powers, principal deputy legislative counsel, said the Senate is not required, as a matter of constitutional due process, to adopt proof beyond a reasonable doubt or proof by clear and convincing evidence or proof by a preponderance of the evidence.

Powers wrote, "Indeed, at the federal level, the United States Senate typically does not adopt a specific standard of proof for an impeachment trial. Instead, the general practice is the United States Senate is for each individual to weigh the evidence under whatever standard of proof that the senator deems appropriate."

If the Senate does not adopt a specific standard of proof, then each member may apply his or her own standard of proof as is necessary "to do justice according to law and evidence," as required by the Nevada Constitution, Powers wrote.

Talking about a possible court challenge, Powers said the judiciary would likely defer to the decision of the Senate in adopting a specific standard of proof.

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