Former teacher who pleaded guilty to sex crimes has shot at probation

Monday, Jan. 24, 2005 | 10:54 a.m.

A former UNLV basketball player who had sex with students while serving as a middle school substitute teacher has a chance at probation next month, thanks to a prosecutor's backdating of his crimes by a year.

The prosecutor, Deputy District Attorney Lisa Luzaich Rego, and her boss, District Attorney David Roger, said the move was necessary to ensure that justice was served.

But a couple of local experts said they have never heard of the judicial system backdating a crime.

And one of the prosecutor's colleagues in the district attorney's office said the case probably could and should have been handled differently. A victim's rights advocate was more blunt, saying the backdating is outrageous.

The move could lead to Cornelius "Corky" Ausborne avoiding prison time despite his Sept. 1 guilty plea to one count of sexual conduct between a school employee and a pupil and one count of lewdness with a minor under 14. According to police records and the initial court documents, all of Ausborne's crimes occurred in 2004.

Prior to October 2003 under Nevada law a person convicted of lewdness with a minor under 14 could be sentenced to as little as probation and a maximum 10 years to life in prison. In October 2003, however, the state Legislature changed the range of sentencing for the crime to anywhere from two to 20 years in prison to 10 years to life in prison.

Prior to the Legislature's change judges only had two sentencing options for people convicted of lewdness with a child under 14 years of age: probation or a life sentence with eligibility for parole after 10 years.

The change in sentencing options was passed in part thanks to successful lobbying efforts by the Nevada District Attorneys Association.

The original criminal complaint against Ausborne says he committed his crimes "on or between March 1, 2004, and April 30, 2004." Under the plea agreement it was changed to read "on or between March 1, 2003, and April 30, 2004.

That change makes Ausborne eligible for probation when District Judge Sally Loehrer sentences him on Feb. 14.

Luzaich Rego said she "fictitiously expanded the dates so the negotiations would benefit everyone."

She said while negotiating Ausborne's case with his attorney, Steven Stein, it became clear the former substitute teacher would not plead guilty to the lewdness charge unless there was a chance he could be sentenced to probation.

Luzaich Rego said having Ausborne plead guilty to the lewdness charge was key to the "safety of the community" because "lifetime supervision is a requirement" under the charge whether he is sentenced to prison time or probation.

She said the charge of sexual conduct between a school employee and a pupil does not carry the lifetime supervision requirement. The prosecutor said while "expanding the dates" is not a common practice "it's done when needed" in cases such as Ausborne's.

Luzaich Rego said probation will simply be an option at Ausborne's sentencing and she retains the right to argue for prison time, a right she said she would use at Ausborne's sentencing next month.

Ausborne originally was to be sentenced on Dec. 13, but the Parole and Probation Department apparently didn't follow the "expanded dates" method utilized in negotiations. In its pre-sentencing report the department said probation was not an option at sentencing. The department's employees based their pre-sentencing report on the law, as it had been changed by the Legislature in October 2003.

During pre-sentencing, Loehrer said Ausborne would only be eligible for probation if a psycho-sexual evaluation administered by the Department of Parole and Probation found him to be a low risk for repeat offenses.

Loehrer also emphasized that she would have the final say over his sentencing.

Judges typically follow the recommendation of prosecutors when handing down a sentence in a case for which prosecutors have agreed to a plea bargain.

Obtaining a conviction in a case such as Ausborne's can be difficult because often victims of sexual crimes are afraid to come forward or are uncooperative.

Roger supported Luzaich Rego's decision to backdate Ausborne's crimes, saying "this isn't a normal situation, but Lisa (Luzaich Rego) felt it was appropriate and I agree."

Ausborne was originally charged with eight counts of lewdness with a minor under age 14, six counts of sexual assault with a minor under 14, and one count each of sexual conduct between certain employees of a school and pupil and open or gross lewdness.

He admitted to authorities that on May 3, 2004, in his classroom he masturbated in front of a 14-year-old student and touched her. He also admitted to having sex with a 13-year-old student at her home between December 2003 and January 2004.

Roger said one of "Ausborne's victims wrote a letter saying she "loved Ausborne and that it wasn't his fault." Although he said "expanding the dates" is certainly not a common practice, often unique approaches to negotiations are required in sex-related crimes.

"Many times in sexually related offenses the evidence is not strong and victims fail to cooperate and come forward, which requires us to engage in creative resolutions to make sure justice is served," Roger said.

But Clark County Public Defender Phil Kohn, who has worked in the valley's courtrooms for years, said while he's seen "fictitious pleas" before, he has "never seen fictitious dates."

Kohn, whose job is to get the best possible outcome for defendants, said although he didn't understand how the dates could be changed he said the "most important thing is a just result."

He said if justice is achieved for the victim and the defendant through this negotiation "justice would have been served."

UNLV Boyd School of Law Professor Lynne Henderson, like Kohn, said she has never seen or heard of a case in which the dates were changed to "get around mandatory jail time."

Henderson said while dates are often expanded to "benefit victims" who might not remember the exact date of the offense, she has never heard of a date changed to benefit the accused.

She said technically speaking, changing the date in this matter is a lie, but it could be a lie committed to serve justice.

Henderson explained that if victims refuse to testify and cooperate and if prosecutors don't believe they have enough evidence to prove guilt beyond a reasonable doubt, they must find a way to serve justice.

She said regardless of whether Ausborne serves prison time or gets probation through her negotiation, Luzaich Rego has both succeeded in getting lifetime supervision for Ausborne and prevented him from ever teaching again.

Henderson said while some victim's groups and members of the general public might be appalled to hear of the "strange manner" of treatment for Ausborne, she said they often "don't understand" the difficulties in proving guilt "beyond a reasonable doubt."

Terri Miller, president of Las Vegas-based SESAME, which stands for Stop Educator Sexual Abuse, Misconduct and Exploitation, however, says she knows of the difficult choices prosecutors are often forced to make. But she failed to see how offering Ausborne a chance at probation could be seen as achieving a sense of justice.

Miller said she'd "never heard of a case like Ausborne's where the clock was turned back to make a defendant eligible for probation for an offense that occurred at a time when it's not a probational offense." She said retaining the right to argue for prison time is "absolutely not good enough and is offensive."

"David Roger needs to get a backbone and put this man and those like him in jail," Miller said. "Parents trust they are sending their kids to safe schools, the same parents who go to the voting booths. These men cannot continue to get slaps on the wrist and walk free."

Chief Deputy District Attorney, Special Victims Unit, Doug Herndon, who did some of the writing used to change the sentencing structure of the lewdness charge by the Legislature, said Luzaich Rego could have "probably found a better way" to treat the Ausborne case.

He said Luzaich Rego's actions were "not completely unheard of" and she was "trying to do the right thing, but went about it in the wrong way. It could have probably been done in a better way."

Ausborne taught at five middle schools in the Clark County School District in the 2003-04 school year: 75 days at Grant Sawyer, 23 days at Marvin Sedway, six days at James Cashman, one day at Theron Swainston and one day at Lyal Burkholder.

Authorities said they began their investigation in early July after hearing reports a teacher was having sex with students. Ausborne was fired after school administrators were informed of the charges.