Alleged attack postpones retrial

Tuesday, May 10, 2005 | 11 a.m.

The retrial of a man charged with killing his 2-year-old son in 1997 was postponed again Monday because he allegedly attacked his defense attorney at the Clark County Detention Center on Saturday afternoon.

John Moxley allegedly jumped over an interview table in a room at the jail and beat his lawyer, Paul Wommer, officials said. The attack left Wommer with bruises and cuts on his face and chest, but he suggested the more glaring wound might be to the security reputation of the jail.

The policy at the jail is to allow inmates to meet with attorneys unrestrained and without a guard present in the interview room due to attorney-client privilege. Attorneys can also confer with clients using phones or video conferences.

Metro Captain Leroy Kirkegard, who heads the North Tower at the detention center where the Moxley incident happened, said the detention center's policy regarding contact visits between attorneys and inmates "as is, is safe."

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The defense attorney said he couldn't imagine what would have happened if the investigator wasn't with him, or if instead of Wommer a female attorney was the victim of the attack.

Wommer disagrees. He said that even though he is over 6 feet tall and is of a medium build, he was lucky that his investigator was in the room when Moxley attacked because it took the two of them to fend off Moxley until a guard arrived to help them.

Moxley is a muscular man who stands over 6-feet tall. He is extensively tattooed and keeps his head shaved save a long flowing tail of hair that runs down his back.

Wommer said he expected a guard would have responded within 15 to 30 seconds after his investigator pressed the "summons" button that alerts guards to a problem, but he said it took "three to four minutes" for guards to reach the scene and restrain Moxley.

Wommer, who was a prosecutor in Clark County for 13 years before spending the last 11 as a defense attorney, said he has made roughly 5,000 "contact visits" with inmates in his career and nothing like this has ever happened.

The defense attorney has withdrawn as Moxley's attorney and the district attorney's office has filed battery by a prisoner charges against Moxley for the attack.

Wommer said he was not considering filing a lawsuit against the detention center "at this time."

Kirkegard said the three to four minute response time Wommer stated was "highly unusual, because there is an officer stationed one door away from the interview room to respond to any problem or if an attorney has concluded an interview."

He said guards do have the authority to unilaterally place an inmate in restraints if a threat is perceived or a given inmate has posed problems in the past. The captain also said an attorney can request a defendant be placed in restraints prior to a contact visit.

Kirkegard said there was no indication Moxley had made any threats to Wommer in the past or that any ill will existed between Moxley and his attorney.

He said Wommer's questions about what would have happened if a female attorney had been attacked by Moxley or what would have happened if Wommer had been alone with Moxley in the room " big what ifs because normally it's not a problem between defense attorneys and their clients because an inmate is not going to do anything to jeopardize their case"

Wommer said he had scheduled the visit with Moxley in preparation for Moxley's re-trial. Wommer said he talked about trial preparation with Moxley for 10 to 15 minutes by himself before his investigator arrived. Upon the investigator's arrival Wommer said Moxley said he wanted his trial rescheduled.

Wommer said after explaining to Moxley that he had "no legal basis" to request a new trial date Moxely leapt over a table and attacked Wommer.

For Moxley the incident hasn't jeopardized his case, but instead given him what he's wanted for months. Wommer said Moxley has been seeking to have Wommer withdrawn as his attorney for months because, Moxley says, "we don't get along."

District Judge John McGroarty had adjusted his bulky criminal caseload by freeing up the afternoons of his schedule for four weeks to accommodate Moxley's trial.

"We are dismayed to say the say the least that you (Moxley) would cause such a situation," McGroarty said in court Monday. "I'm concerned of what the effect those actions had on this court's timetable. Your lack of cooperation is intolerable."

Moxley, who will now be represented by Greg DeNue, tried to deny he attacked Wommer in hopes his trial would be rescheduled, but McGroarty interrupted him saying he would have to consult with DeNue before addressing the court.

Wommer said Moxley's attack was "not very shocking because there had been so many strange occurrences" throughout Moxley's case.

In December 2000 the Nevada Supreme Court said an instruction given to the jury on malice was wrong, and it ordered a new trial for Moxley, who was sentenced to life in prison with the possibility of parole.

The jury was given an instruction that "malice aforethought was a necessary element of the crime of first-degree murder." The instruction said murder by child abuse is considered conclusive evidence of malice aforethought.

Moxley decided he would represent himself at the re-trial, but as per custom McGroarty appointed a standby attorney to assist Moxley in filing motions and addressing questions about the law.

Wommer said after two years of working with standby attorney Jennifer Bolton, she withdrew from the case after it became clear that she and Moxley "didn't see eye to eye."

Wommer said he was next in line and served as standby counsel for Moxely up until Moxley's calendar call in September 2004.

Wommer said District Judge Stewart Bell handled the calendar call due to McGroarty being absent that day, and at that hearing Moxley declared he no longer wanted to be his own attorney and wanted Wommer to take over as his attorney.

Bell granted the motion, but made it clear he would not be allowed to change his mind later and decide he wanted to represent himself.

Wommer said over the last several months Moxley had unsuccessfully requested Wommer be withdrawn as his attorney, and believes that Moxley attacked him in a last ditch effort to have his trial date rescheduled.

McGroarty will issue a new trial date for Moxley at a hearing scheduled for May 16.

Although Moxley was granted a new trial by the state's high court, the court said the evidence was undisputed that the child, Jonathan Moxley, died of shaken baby syndrome.

An examination showed the baby's whole body covered with bruises, he had a black eye, internal and intracranial bleeding, retinal hemorrhages, swelling of the brain and progressive brain contusions.

Moxley said he and the child had been asleep on the couch and when he awoke the baby was having trouble breathing and was an odd color. Moxley said he began to shake and smack Jonathan in an effort to revive him.