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Judge Douglas Herndon explains why he is recusing himself from the sentencing of former Deputy District Attorney David Schubert, who was appearing in court for sentencing on cocaine possession charges at the Regional Justice Center in Las Vegas on Thursday, Dec. 1, 2011.
By Conor Shine (contact) 
Thursday, Dec. 1, 2011 | 12:06 p.m.
A judge said a plea deal reached for former Deputy District Attorney David Schubert in a cocaine possession case is too lenient and stepped aside rather than sentence him to probation.
“You’re getting a better deal than people you’ve prosecuted, and I don’t think that’s just and proper,” said Clark County District Court Judge Douglas Herndon, who recused himself from the case.
Schubert, who handled the high-profile Paris Hilton and Bruno Mars celebrity cocaine cases, was arrested in March after a small amount of cocaine was found in his car during a traffic stop. He resigned from his job with the Clark County district attorney’s office in April and in October pleaded guilty to felony cocaine possession charges.
A prosecutor from the state attorney general’s office, which is handling the case because of the local district attorney’s conflict with Schubert, agreed to recommend probation.
But during Schubert’s sentencing Thursday, Herndon unexpectedly announced that he was recusing himself from the case. Herndon had worked in the district attorney’s office at the same time as Schubert, but Herndon said he didn’t have a personal relationship with Schubert.
The reason he is stepping aside, Herndon said, is because he didn’t agree with the plea deal struck.
Herndon admitted his feelings about the negotiations might be impacted by his history as a prosecutor, noting that he felt prosecutors should be held to “a higher sense of responsibility.”
“I just can’t reconcile it with myself,” he said.
Thom Gover, the chief deputy attorney general prosecuting the case, said he was surprised by Herndon’s decision and thinks the recommended sentence for Schubert is fair.
“That’s (Herndon’s) honest reaction I’m sure,” Gover said. “We disagree and think it’s an appropriate sentence.”
Gover noted that the amount of cocaine found in Schubert’s possession and the fact that it was his first offense qualify Schubert for probation under Nevada Statue.
Schubert’s case will be sent back to the court’s master calendar, where it will be assigned to a new judge, and a new sentencing hearing will be scheduled.
If this judge's statement is true - he made the right choice.
But I highly doubt this is true. In fact, I would be surprised if the judge can name ONE, just ONE, case where a person was sentenced to prison/jail for the equal amount of drugs found on this guy.
This guy had a personal drug problem. Flabbergasting how the state is willing to spend so much money on someone who makes a poor personal decision in abusing a substance.
The guy has no criminal history - why would ANY Nevadan agree to spend tax payer money in housing someone in jail because that person abused a drug?
He wasn't selling it. He wasn't distributing it. He was abusing it.
Next time this guy is up for re-election, ask yourself: Do you agree in wasting YOUR tax payer dollars to send some guy to prison/jail because that person abused a drug?
A policy of jailing a drug abuser is in itself wasteful and shown to be counterproductive - it doesn't work.
This is NOT about one person - this is about a failed national drug policy.
If the judge is right about other cases with similar circumstances and result - yes, the judge is right.
But I saw nothing in this article referencing any example where a first time offender, with similar amounts of drugs, was sentenced to prison/jail.
Who wants this guy in jail? If probation is the norm, this guy should get the norm.
If you want to set an example and be "tough" on crime - don't tell people you are sending ONE guy to jail - send them ALL to jail.
You wont do that because it is not practical and would only serve to continue a failed policy.
Simple - This guy was abusing drugs. Has no criminal history. He is no longer a prosecutor and he will have a criminal conviction. Jail? Of course not! Put him on probation and make him pay for it.
You want to set an example with a drug abuser? How about the state set an example by prosecuting the killing of innocent people by trigger happy police officers? That prosecution will show citizens, more importantly corrupt trigger happy police officers, that no one is above the law.
I would feel much safer. With this case, do I feel much safer? No.
Finally a judge with just a little integrity. It would have been better if had sentenced this scumbag to a prison sentence. But its a start.
Typical hypocrite David Schubert who made a living putting our fellow citizens in jail for the same thing he was doing and he gets a recommended sentence of probation? The judge made the right call in removing himself from this mockery of justice.
unlv702...
Agree with you 100%.
I think this judge is looking at ELECTION TIME, and covering his a$$...
He doesn't want an opponent in the next election to throw a 'light sentence' commercial on television, calling him 'weak on crime' and accuse him of 'cronyism.
As long as the sentence is in line with what other, first-time offenders receive for possession, the plea deal is legit.
Just another example of politics interfering behind the bench.
Electing judges is just wrong.
"Electing judges is just wrong" Ding Ding Ding, we have a winner
Finally a public official who puts the public first. I hope his chatacter rubs off on his peers.
Paris Hilton got probation, community service, and a fine. Bruno Mars got probation, community service, and a fine. The prosecutor is recommending David Schubert receive probation (and the article is silent as to community service and a fine, but it would surprise me if those aren't also included.) That's because first-time possession is a probationable class E felony. He's getting pretty much the same deal every other person gets the first time around.
Prosecutors aren't held to a higher standard as it related to the application of criminal law and penalties. They are held to a higher standard as it relates to their profession, and disciplinary proceedings by that profession will probably happen (most likely he'll be required to do rehab, and possibly a suspension. I don't see him getting disbarred over this.) The judge is wrong here.
The Judge is wrong, the law is wrong and American society is wrong -- NO ONE should ever be persecuted for possession of cocaine -- period.
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Both Paris Hilton and Bruno Mars (and thousands of other citizens arrested and fined for merely using substances that have alter the brain like say - alcohol?), were able to keep their cases down in the justice court. Mr. Shubert had to plea to a case which took it into district court. Only in the District Court is there a formal probation with an underlying sentence, so arguably his sentence is much more severe than those similarly situated who he prosecuted. A category E felony of this sort is not only probationable, but it is MANDATORY. A judge who follows the law would be required to give probation. Since I presume Judge Herndon would follow his oath to administer the law fairly to all citizens, I can only assess that the Judge Herndon opposed the idea that Mr. Shubert would be statutorily eligible to receive treatment and an ultimate dismissal of charges if he was successful. This is not only allowed under statute, but is probably a better course of action for a civilized society than prison. Kudos to Judge Herndon for pulling himself off a case he didn't think he could be fair on...all judges should be encouraged to do that...
If say a professional who counsels rape victims rapes someone, or a cop mugs someone, or a fireman starts a fire that kills someone ....we consider the offense to be more offensive because they above everyone else new better and we as a society despise hypocrites.
We "get it" why rock stars and the rich and famous use drugs. That's what they do. But we as a people don't get why someone who knows first hand the effects drugs have on the user and who has sacrificed 10 plus years going to school to enforce the laws of the land would wantonly so disrespect his profession and forevermore taint the trust of the public in Las Vegas. That alone demands that he spend some time in prison to reflect on the damage he has caused and to send a message that this type of behavior is not to be tolerated in our community by those who we entrust to enforce the laws of our State!
Let me add ...
When you are in a position of public trust and you bring disgrace upon your profession by betraying said public trust, then legal precedent is clear, you are to pay a higher price than the average citizen in the form of enhancements to "mandatory minimums" .
Why should that higher standard not be applied here? Is this Chicago politics Las vegas style?
All professions that require public trust are held to a higher standard. Period! When that trust is broken, and the profession takes a hit and public trust is no more, the person who took a dump on their profession and their predecessors will have to pay a higher price. PERIOD! Don't like that rule? Then don't take upon yourself the exalted mantle of public trust that demands that one be beholden not only the laws of the land but the honor of their position and all those who came before them or will come after.
The DA should have fought the search instead of pleading guilty. He did the right thing and accepted responsibility. It's a first offence and he should receive probation. I'm sure he's lost a lot in this whole process, or maybe it saved him from harsher things. A lot of different punishments available that will benefit society than locking this person up. I believe the judge made the wrong call.
Yeah Anthony, he should have tried to beat the DA's case on a technicality. The fact he was caught red handed had nothing to do with his decision "not to fight it", he did so because he's a good guy. That mentality is one of the problems with this country right now, lack of morals, lack of respect, lack of integrity, and a "if it feels good do it" mentality that suggests that we should just look out for number one and to hell with everyone else. The result? History suggests that our Republic will soon come to an end since we've lost our vision, we have forgotten where our freedoms and blessing come from. They don't come from the government. They don't come from a law book. They don't come from philosophers. They come from God! And when a society thinks it can do whatever it wants without consequence, the melting pot becomes a cesspool and the end is nigh.
MickeyA,
For someone who talks a big game about our freedoms and blessings, you sure do seem willing to shrug them off as a "technicality." If the search violated his rights, the only remedy available is to prevent the police from using the evidence. That's not a "technicality," that's the judicial system trying to rein in police who are only too willing at times to ignore the suspect's Constitutional rights. Trying to sue the police for violating your 4th Amendment rights is an exercise in futility.
"A category E felony of this sort is not only probationable, but it is MANDATORY. A judge who follows the law would be required to give probation."
Another example of how the criminal justice system has warped priorities. Felonies, by definition are serious crimes, serious crimes demand jail time.
This, although despicable when committed by a prosecutor, simply isn't a felony level crime. It is a War on (Some) Drugs crime -- a crime of the mind, perhaps.
The War on (Some) Drugs, aside from the nearly thirty thousand dollar cost of keeping someone in jail for a year, is further evidence the country possesses the same warped moral compass it picked up several decades ago. The War on (Some) Drugs has ruined far more families than it has healed. By far.
Unfortunately, the situation is unlikely to change any time soon, because it has morphed in one of the country's largest jobs programs. No politician wants to go back to the voters and face allegations of being soft on crime and having eliminated any number of high paying government jobs, particularly law enforcement. Still, the way they parrot the bloated government, overcompensated employee worker line, one might think the Republicans would jump at the chance to cut the government down to size.
Other countries have adopted drug abuse policies that are far more effective and far cheaper than the United States. Of course, it appears the US is incapable of changing its approach to drug abuse because after privatizing jails and prisons, there aren't enough profits to be made by the politicians' (bribe makers) campaign contributors.
Apparently, it's not enough the US borrows 42 cents of every dollar it spends, the people who pay the politicians to write (actually lobbyists often write the legislation themselves) and pass the laws want more. And they always will.
Don't think I'm anti-law enforcement, I'm not. I'm anti-paying for unnecessary programs and practices that we don't need and can ill afford.
So, when is too much too much?
(Before someone replies that I must be a drug user, which always seems to happen for some reason; I'm not and I don't drink, either. So those who are compelled to respond with personal attacks might want to try to address the discussion at hand with some facts this time -- at least give it a try for once, if it's not too hard.)
As a citizen, I will be watching this particular case. So far, both sides (in comments) have made compelling arguements.
This case reflects the standards in our present society.
What would our nation's Founding Fathers do???
Blessings and Peace,
Star
Finally a Judge with some balls .
@ Cognastics -- your comments are "despicably" on point -- a more logical approach to social narcotic ABUSE issues would be encouraging those seeking assistance to find the professional services needed -- services which incarceration/criminalization don't adequately provide -- shifting the government jobs market from being socially abusive to being socially helpful.
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