Las Vegas Sun

December 21, 2014

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After 14 years wrongly served, he sues those who put him behind bars

A Las Vegas man released from prison in March after a federal judge determined he was wrongfully convicted of sexually abusing his daughter has filed a lawsuit against key players in the case, including the prosecutor and the public defender.

The suit filed Thursday in U.S. District Court in Las Vegas on behalf of Robert Hays, who served 14 years behind bars, seeks unspecified damages from Clark County and at least four other defendants based on claims that his constitutional rights were violated and that he was the victim of malicious prosecution.

"There is no way to recapture the 14 years he spent in prison, the relationships he could have had, the career he could have enjoyed, or his lost freedom," the lawsuit says.

The defendants include Thomas Moreo, the chief Clark County deputy district attorney in the case, and Drew Christensen, the deputy public defender. Also named are Gary Jacobsen, the lead Metro Police detective in the case, and Rene McClymont Butts, a nurse practitioner described as an expert in child abuse cases who had been hired by the district attorney's office to assist in the Hays investigation.

Hays' attorney Dominic Gentile said Friday that in his 35 years of practice he has never handled a case in which so many aspects of the criminal justice system went wrong.

Gentile said the closest to this case in recent years that he could recall involved Roberto Miranda, who won a $5 million settlement from the county in 2004 after spending 14 years on Nevada's death row for a killing he didn't commit. Miranda also had argued that he was not adequately represented by the county public defender's office.

"If they settled Miranda for $5 million, I would suggest that that's just a starting point for this case," Gentile said.

Hays, then a 33-year-old armed security guard, vehemently denied wrongdoing when he was convicted in 1993 on eight counts of sexually abusing his then-8-year-old daughter , Jennifer. He received four consecutive life terms. But in March, at age 48, he was ordered released from prison by U.S. District Judge Roger Hunt after the judge ruled that Hays had been victimized by major players in the case.

Hunt concluded that Hays was innocent of the charges against him and had been convicted on insufficient evidence.

"He was denied due process and a fair trial by the actions of the prosecutor and the deficient performance of his own counsel," Hunt wrote. "He suffered convictions for a number of crimes which were never shown to have occurred ..."

The lawsuit, which names Jennifer Hays as a co-plaintiff, said the case's fallacies began when she was forced to undergo a physical exam "not conducted in accordance with any acceptable forensic evidentiary standards" and then forced to provide false testimony against her father.

Robert Hays blamed the sexual assault allegations on his wife at the time, whom he accused of concocting a scheme to make it easier for her to run off with her boyfriend. But the lawsuit alleges that the law enforcement investigation and Hays' prosecution moved forward even after the wife and daughter recanted their allegations.

"So wrongful was the defendants' assessment of the allegations against Mr. Hays that Mr. Jacobsen characterized Mr. Hays' willingness to voluntarily turn himself in as a confession to the charges against him, and further took the position that Mr. Hays had confessed to the crime in Jacobsen's pre-arrest interview of Mr. Hays, despite that fact that Mr. Jacobsen knew that Mr. Hays had not confessed," the lawsuit states.

The suit alleges that Butts performed no internal medical examination of Jennifer, but instead used unreliable tests to conclude the girl had been sexually assaulted.

Hays also alleged that he was deprived of his Sixth Amendment right to effective counsel by Christensen's performance.

"His representation of Mr. Hays amounted to no representation at all," the lawsuit states.

"At the time the Clark County public defender had a policy of assigning inexperienced, inadequately trained and under-qualified attorneys, such as Mr. Christensen, who frequently made numerous trial errors and were incapable of otherwise handling such cases. Moreover, in accordance with office policies and practices, Christensen did virtually nothing to investigate the numerous leads and witnesses who could have exonerated his client."

Moreo on Friday declined to comment on the lawsuit, saying, "I cannot say anything right now without seeing it." His boss, Clark County District Attorney David Roger, also had not seen the lawsuit and said he had no comment.

Jacobsen, who has since retired from Metro Police, and Butts could not be reached for comment. Calls to Metro and Christensen also were not returned.

Christensen's boss, Clark County Public Defender Phil Kohn, declined to comment. Kohn told the Sun in March, however, that the Hays case "was a failure on so many levels." But he defended Christensen and said some policies have since changed that allow Kohn's deputies to more zealously represent clients. His office, for example, now pays for expert witnesses when warranted, which Kohn said was not the policy when Hays went to trial.

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