Monday, May 9, 2005 | 10:53 a.m.
Henderson Municipal Court Judge Ken Proctor improperly dismissed a DUI charge against a former state parole and probation department administrator by siding with a defense attorney's request to "circumvent the law," the city attorney's office argues in an appeal to reverse the decision.
The city's appeal to reinstate the charges against Edward G. Henderson, who at the time of his arrest was a district administrator of the state Division of Parole and Probation, is likely to be heard in about two months, according to Assistant City Attorney Dave Mincavage.
On March 24 at the request of Edward Henderson's attorney, Bill Terry, Proctor dismissed the case with prejudice, meaning the city couldn't refile the DUI charge. If the court overturns the ruling, Henderson's case would go to trial.
In his court brief, Mincavage concedes the prosecution wasn't ready for trial on March 24, but said the court calendar clearly stated the case was to be continued to a future date. That's because the special prosecutor assigned to the case, William Taylor, could no longer handle the case because he had accepted a position with an insurance company, Mincavage said.
George Ward, a deputy city attorney in the courtroom on another case, sought to have the case dismissed without prejudice to counter Terry's move.
Mincavage argued that state law allows prosecutors to seek a dismissal with the right to retry the case and Terry even acknowledged that in the court proceedings when he asked Proctor to circumvent the law.
The state Supreme Court addressed a similar issue in 2000 in Washoe County v. Richard Alan Marcus and ruled the state statutes allow a prosecutor to dismiss, one time without prejudice, a misdemeanor case before trial without showing a good cause, Mincavage said in the brief.
In that case, Marcus was arrested and charged with DUI. He pleaded not guilty and the case was set for Sparks Justice Court. Prior to the trial, the prosecution, conceding it wasn't ready for trial and needed a witness, had the case dismissed without prejudice. When it was refiled, Marcus argued prosecutors could not dismiss the case and refile it if the court didn't grant a motion to continue.
"I feel strongly our appeal will be granted because there is a Nevada Supreme Court case on our point," Mincavage said.
A city attorney's office memo pointed out that Proctor, in the last six to 12 months, was given a copy of the state statute and Supreme Court decision reaffirming the city's right to dismiss a misdemeanor case one time without prejudice.
Terry declined to comment on the city's appeal. Proctor said he couldn't comment on a pending case, according to his secretary.
The handling of the case prompted city officials to deny that the former state employee was getting any preferential treatment. In its filing, the city attorney's office is putting the onus on Proctor, a former police officer who in 2002 was named judge of the year by the Nevada Judges Association. He has served as a Municipal Court Judge since 1991.
Although not mentioned in the city's court filing, Terry represented Proctor in 2002 when he and Henderson Municipal Court Judge John Provost sued the city demanding bigger wage increases. The two ultimately dropped the case.
Mincavage said he doesn't believe the past relationship should be an issue.
"We haven't felt that way," Mincavage said. "I think that case (the lawsuit) is over, and it is up to the judge on that."
Las Vegas attorney Tom Pitaro, who assisted Terry on Proctor's lawsuit, said Proctor had recused himself at the time on cases involving the two attorneys. He said it shouldn't be an issue now.
"The case is over and everyone in the city knew who was involved," Pitaro said. "There is no problem."
David Sarnowski, the executive director of the state Commission on Judicial Discipline, said there are "no hard and fast rules" on judges stepping down because an attorney handled a case for them in the past.
Having a judge make decisions involving an attorney who represented him can create a negative appearance of unequal justice even if there is nothing improper done, Sarnowski said.
"There isn't an absolute ban on it occurring," Sarnowski said. "Each case would have to be looked at on a case-by-case basis. I think it would depend on the nature of the relationship with the judge and how long time had passed."
A few states, unlike Nevada, have a "cooling off period" in which judges would have to recuse themselves from cases involving an attorney they hired for set period. The typical wait appears to be two years, Sarnowski said.
The city attorney's office brought in an outside prosecutor because Henderson supervised Beth Jacobs, a state parole and probation officer. Jacobs is the wife of Mark Jacobs, a deputy city attorney's chief investigator, according to a memo to City Attorney Shauna Hughes that was distributed to the City Council.
Taylor, the special prosecutor, notified the court Feb. 10 that he was withdrawing from the Henderson case because his office was closing, according to the memo. Taylor, however, didn't file a motion with the court to formally withdraw from the case, the memo said.
Since Henderson had retired from his state job, the city attorney's office decided Feb. 28 that a special prosecutor was no longer needed in the case, which could now be handled internally. In the memo, Mincavage said he contacted Terry's office but the defense attorney did not return the call. The city produced a telephone log listing a 90-second call to Terry's office on March 9.
Mincavage said in the memo that on March 17 he believed the case had been continued as state in the court calendar and left on vacation. He said he left the file on his desk for a follow up on his return.
In November 1999, Mincavage's family were victims of an accident in which the other driver was under the influence of drugs. Mincavage's mother-in-law bled to death on top of his 4-year-old son.
"I am disappointed in the current result of this case," Mincavage wrote in the memo to Hughes. "I am also disappointed in the undeserved negative publicity this office has received. I pledge that I will rectify any procedural errors in this case and ensure that the Henderson city attorney's office continues our long-standing reputation of aggressive prosecution in DUI cases."
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 Springs Road. The police report said Henderson staggered from his vehicle and had an unsteady gaze, bloodshot eyes and appeared to be sleepy.
Police said they found a sleeping pill and a yellow-striped capsule in the car. Henderson failed a field sobriety test, police said.
Edward Henderson told police had had taken an over-the-counter allergy medication. He also said he had taken a sleep aid the day before and a pain pill four days earlier, police said.
Edward Henderson's ex-wife told police that her husband had not been drinking that night. She said at the time her husband was recently prescribed an anti-depressant.
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