Tuesday, Jan. 11, 2005 | 11:06 a.m.
Secretary of State Dean Heller's office questioned the strength of the criminal case the attorney general's office put together against Las Vegas Councilwoman Janet Moncrief, calling the smoking gun evidence an "empty water pistol."
The conflict between the two offices spilled into the open Monday as the Secretary of State's office released an exchange of letters and e-mails leading up to Moncrief's indictment on campaign finance violations.
In a letter to Attorney General Brian Sandoval sent Monday, Heller outlined a series of exchanges questioning the prosecution, concerns he said were essentially ignored.
Saying Sandoval's office created a conflict of interest, he asked Sandoval to appoint a special counsel to represent the secretary of state's office in the case, saying Sandoval's office "cannot render independent advice to this office in this matter."
Heller said his top aides opposed moving forward with a grand jury to indict Moncrief, saying the case was based on questionable witnesses, and pointing out a disagreement over the interpretation of an election law. Heller's letter added that his office suggested settling the case with Moncrief instead of going to court.
However, Heller said he couldn't say for sure whether or not Moncrief should have been criminally charged because he hasn't seen the state's investigation into the case. He said he was frozen out of the discussion soon after his staff voiced their concerns over charging Moncrief criminally.
Heller said that at one point a top deputy from his office said they did not support moving forward with the case because the "smoking gun" evidence they were told existed "turned out to be nothing more than an empty water pistol provided by questionable witnesses."
Heller said he believes the criminal charges were the result of an "overzealous" division within the Attorney General's Office.
The charges are a looming issue in Moncrief's Jan. 25 recall election, and the councilwoman said hopefully Heller's comments give more weight to her contention that she is a victim of selective prosecution. District Judge Nancy Saitta has ordered a Feb. 17 hearing on that question.
In addition to alleging selective prosecution, Moncrief's attorney Richard Wright has said the statutes the councilwoman was charged under have not been used in campaign finance cases before. Moncrief faces four counts of offering false instrument for filing or record and one count of statement made in declaration under penalty of perjury.
Prosecutors allege Moncrief did not report the value of work performed by teens who canvassed neighborhoods for her, the contributions and/or expenses of political operatives Steve Miller and Tony Dane, the in-kind contribution of the use of a van, and the cost of producing and distributing attack fliers.
If convicted, Moncrief faces one to five years in prison and up to a $5,000 fine on each of the four counts of filing false campaign expense reports, and from one to four years in prison and a $5,000 fine on the perjury charge.
Wright has argued the charges against Moncrief should be dismissed because she was improperly charged due to a change to the Campaign Practices Act in 1997 by the state legislature. "No one has been prosecuted from 1997 to 2003 for this purported criminal offense," he said during an interview last month. "Why do they prosecute Janet Moncrief when other more egregious offenders are dealt with civilly?"
Elected officials suspected of turning in false campaign finance reports can be prosecuted civilly. The civil charge of willfully filing false campaign finance reports comes with a maximum penalty of a $5,000 fine per offense.
Wright said by charging Moncrief with offering false instrument for filing or record the prosecution was essentially guilty of subverting the intention of the legislature, and said he couldn't find one case where filing a false campaign report was prosecuted using offering false instrument for filing or record in any jurisdiction in the country.
Prosecutors have defended their actions, saying the case lent itself to the offering false instrument for filing or record charges.
Regarding the selective prosecution charges, Gerald Gardner, chief deputy attorney general for the office's criminal division, denied the accusations. He said the Secretary of State's Office long favored criminal prosecution of Moncrief, but then suddenly changed its tune last March.
"For months they had been absolutely gung-ho about this being a criminal case," Gardner said.
The two offices, both held by Republicans, were apparently also at odds over the release of their correspondence in the Moncrief case in recent days -- although officials from both sides said they were glad to allow the other to turn over the documents. In the end, both offices released information.
Heller also accused Sandoval's staff of trying to place the responsibility for Moncrief's indictment with the Secretary of State's Office, and with attacking his office in the media.
Gardner said the decision to charge Moncrief criminally was the Attorney General's Office's alone, but said the fact that the Secretary of State's Office referred the case to the investigations division for a criminal investigation indicated to him that they would support criminal charges.
Heller said sending a matter to the investigations division does not necessarily mean he agrees that criminal charges should be filed in the case.
And in his Monday letter, Heller said that given the lack of participation his office has had in the case since almost a year ago, "it is clear that my office was never and could never have been in 'overwhelming support' of the Attorney General's criminal prosecution of Ms. Moncrief."
But while the correspondence shows the tension between the two constitutional offices, the letters and e-mails also highlight potential problems for the state in its case against Moncrief.
During an interview Monday, Heller said he could not say for sure if Moncrief should face criminal charges. Heller said he has not been allowed to see the full investigation report from the state investigation division, which he said has not happened before. But Heller and his top staff, in their correspondence and interviews, lay out their concerns and likely opposition to the filing of criminal charges.
In a Feb. 25 e-mail to Conrad Hafen, senior deputy Attorney General, Heller's Chief Deputy Renee Parker said the two offices and their top elected officials should sit down and discuss the matter before proceeding.
"My concern is that we do not appear to have very credible witnesses, and the responses they are now providing really undermine any argument that the candidate knowingly engaged in any violations," Parker said in the e-mail. "It seems to me like we should be going after a couple of the witnesses instead of the candidate."
During an interview Monday, Heller said he has "serious reservations" about the credibility of the witnesses.
"When you've got Tony Dane and Steve Miller as your star witnesses the only thing you're missing is George Harris," Heller said.
Attempts to reach Dane were unsuccessful and Harris said he found Heller's comment funny, but Miller said he did not appreciate being linked to Dane.
Miller also said the information he gave the grand jury was accurate and corroborated by other witnesses. Miller, a former councilman, has said he worked on campaign attack pieces that were not reported on Moncrief's campaign finance reports.
Heller's letter also said that representatives from his and Sandoval's offices met in March and discussed alternatives to charging Moncrief criminally, including asking Moncrief to resign and levying civil penalties.
But, he added, "following that conversation, my office was never again consulted about this matter."
Heller also said that his office suggested handling the Moncrief matter similarly to how the state dealt with Assemblyman Chad Christensen, R-Las Vegas. Christensen was fined $4,500 after admitting to filing incorrect campaign reports.
Gardner said the Attorney General's Office did not go after Christensen because the Secretary of State's Office did not refer that case to the investigations division or his office.
Heller said there was no need to investigate the Christensen case because the assemblyman admitted wrongdoing.
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