Ruling in case of ex-state worker appealed

Tuesday, March 29, 2005 | 9:43 a.m.

The Henderson city attorney's office has appealed a ruling by a Municipal Court judge who dismissed a DUI charge against a former state parole and probation department administrator because the Henderson prosecutor wasn't ready to proceed with the trial.

On Thursday Judge Ken Proctor dismissed the case against Edward G. Henderson, 52, with prejudice, meaning the city can't refile the DUI charge. That prompted Henderson officials to announce they have asked the Clark County District Court to overturn Proctor's ruling and allow Henderson to face charges.

The handling of the case prompted city officials to deny that the former state employee was getting any preferential treatment.

"We are not trying to sweep this under the rug," said Councilwoman Amanda Cyphers. "We are moving forward with it. For someone having the perception that someone is getting special treatment because they knew someone, that is not the case. That gives government a bad name. With our actions, the city is trying to do what they feel is right."

Henderson City Attorney Shauna Hughes said the case was assigned to a special prosecutor because of a conflict of interest. Henderson, in his state capacity, supervised the wife of a criminal investigator in the city attorney's office. The investigator had also worked for Edward Henderson at one time, she said.

The outside prosecutor notified the city three weeks before the trial that he could no longer handle the case because he had obtained other employment, Hughes said. In the meantime, the conflict of interest no longer existed and the city attorney's office was reviewing whether it could handle the case, she said.

That deputy city attorney assigned to the case, Dave Mincavage, contacted defense lawyer Bill Terry's office to try to find out if Terry would object to the city handling it, Hughes said. Terry's office didn't return a phone call and Mincavage had the case listed to the court as being continued, Hughes said.

When the case went to court on Thursday, the defense attorney, Terry, sought to have the case dismissed with prejudice. The deputy district attorney in the courtroom at the time, George Ward, who was not familiar with the case, saw what was happening and asked the judge that if the case were dismissed, that it be done without prejudice so it could be refiled and proceed to trial, Hughes said.

Hughes said Proctor shouldn't have dismissed the case with prejudice because prosecutors have a right to refile the case under the law.

Hughes said it would have been better if Mincavage had been in court to talk with the defense and the judge, but she said Mincavage will not be disciplined for failing to be at the hearing.

"It would have been much better if Dave had appeared to say he is working with the defense than to trust things happening in a routine fashion," Hughes said.

Terry could not be reached for comment.

Dave Hayward, the court administrator, said Proctor won't comment on the case because it is still active in light of the city's pending appeal. He said he doesn't know why Proctor dismissed the case so as not to allow the city to refile charges.

The handling of the case has caught the attention of Sandy Heverly, executive director of STOP DUI, an anti-drunken-driving organization. She said she's glad the city is appealing the ruling but still has plenty of questions about the handling of the case by prosecutors and over Proctor's ruling.

Heverly said she holds Henderson prosecutors and Proctor in high regard and is confused about what happened.

"It is really hard to determine at this point because we are not hearing the judge's reasons," Heverly said. "That is what I would like to hear. There is a piece to the puzzle missing. You have a tendency to question what's happening given the person and the position he (Edward Henderson) was in."

Henderson Police arrested Edward Henderson Oct. 9 on suspicion of being under the influence of a controlled substance following a minor collision at Stephanie Street and Warm Spring Road. Henderson drove a 1990 Honda that collided with a 2003 Lincoln, police said.

The police report said Henderson staggered from his vehicle and had an unsteady gaze, bloodshot eyes and appeared to be sleepy, Henderson Police spokesman Todd Rasmussen said. Police found a Unisom sleeping pill and a yellow-striped capsule in the car, he said. Henderson failed a field sobriety test, Rasmussen said.

Edward Henderson told police he had taken an over the counter allergy medication. He also said he had taken an Ambien, a sleep aid, the day before and had taken Lortab, a pain pill, four days earlier, Rasmussen said.

Edward Henderson's ex-wife told police that her husband, who was watching a movie with her that night, was not drinking, Rasmussen said. She told police that her husband was recently prescribed an anti-depressant, he said.

In March 2003, Edward Henderson's vehicle struck a Regional Transportation Commission bus. In that case, Henderson left his car in a parking lot and didn't come forward to police until five days later, Rasmussen said.

Henderson was cited for hit-and-run and following too closely, Rasmussen said.