Two judicial races clouded by allegations of prosecutorial misconduct

Among the slew of judicial candidates on the primary ballot are two sitting judges who, as prosecutors, sent an innocent man to prison for more than two decades.  

“And if you think that doesn’t weigh heavily on somebody, you’d be mistaken. I think that informs me every day that I do my job currently about the failings that can occur through our justice system.” Clark County District Judge Doug Herndon said last year, choking back tears as he testified before the Nevada Legislature on a bill to compensate the wrongfully convicted.

While Herndon, who is seeking Seat D on the Nevada Supreme Court, is contrite, his colleague on the bench and previously as a prosecutor in the murder case of Fred Steese, Judge William Kephart, is not. 

Kephart and Herndon won a conviction against Steese, a drifter, for the 1992 murder of Gerard Soules, an entertainer who performed with poodles at Circus Circus.  

“Judge Kephart believes that if the case went to a jury trial again that there was a 50/50 chance that the prosecution would meet their burden to supply evidence that he (Steese) was guilty,” Kephart’s campaign spokeswoman Lisa Mayo said in a statement to the Current.  

The statement reflects a rare judicial disregard for post-conviction reversals.  In 2012, Judge Elissa Cadish, now on the State Supreme Court, issued an actual Order of Innocence in the Steese case.  

At the time, Herndon defended the state’s case against Steese when he testified at an evidentiary hearing before Cadish.  But sometime between 2012 and 2019, Herndon changed his tune.  

“There’s never, ever a wrong time to do the right thing by people,” he testified to lawmakers in 2019.  

Supreme Court Seat D

Herndon, who was appointed to the bench in 2005 by Gov. Kenny Guinn, declined to be interviewed about his campaign for Supreme Court.   

He has raised $338,361 and has $269,295 on hand. 

Herndon has a 14.96 percent error rate in 830 cases, according to Our Nevada Judges, a website that tracks the outcome of appeals.

“Error rates under 10% show up green. Error rates over 40% show up red and add alarm badges to candidate cards,” says Alexander Falconi, the man behind the numbers at Our Nevada Judges. “I hold a policy cycle every two years where I take input from judges and lawyers. The last one was held in June 2019.” 

Assemblyman Ozzie Fumo, a Las Vegas defense attorney and adjunct professor at the UNLV Boyd School of Law, is also running for the seat.  He has raised $152,191 and has $70,509 on hand. 

As a state lawmaker Fumo has championed efforts to eliminate cash bail and reform sentencing. 

“In this race for Nevada State Supreme Court, I will be the only candidate with firsthand experience in writing legislation, trying death penalty cases, and effectively arguing cases to the 9th Circuit Court of Appeals,” Fumo says on his website.   

Another candidate for the seat, Erv Nelson, is also a former legislator.  He has raised $300.  

“He believes that the Supreme Court should apply the law to actual cases before it, and not encroach on the executive branch by attempting to enforce laws or on the legislative branch by attempting to make new laws,” his website says.  

Supreme Court Seat B 

Chief Justice Pickering has been on the Supreme Court since 2009.  Her website says she practiced in state and federal courts for more than 25 years. 

Pickering has raised $118,006 and has $105,888 on hand and faces two challengers in the primary.

Thomas Frank Christensen is making his third bid for Supreme Court.  He has raised no money.  

Esther Rodriguez raised $77,458 and has $48,786 in the bank. Her website says she has served as a judge pro-tem in Las Vegas Justice Court and an arbitrator for Washoe and Clark County courts. 

She says people in other states are surprised that Nevada elects judges but she says it’s unlikely an appointment process would be less political.  

“No, absolutely not. I speak from personal experience.  I applied for a district court judge opening twice.  Twice I got the nomination from the judicial selection commission.” 

Rodriguez says she thought she did well in interviews with Gov. Brian Sandoval but was not selected.   

“There were some political things,” she said. “Open elections is probably the fairest thing.”   

Clark County Department 2

The incumbent, Judge Richard Scotti, was elected to the bench in 2014.  He has raised $163,172 and has $103,606 on hand.  Scotti has an error rate of 17.72 percent, according to Our Nevada Judges. 

The Nevada Supreme Court reversed the conviction of a man on child rape charges because of Scotti’s behavior in the courtroom, which included throwing a pocket copy of the Constitution at a wall.

Scotti has two challengers, Carli Lyn Kierny, a ten-year veteran of the Clark County Public Defender’s office who has spent almost all of the $10,992 she has raised, and Dustin R. Marcello, a private attorney who says he does indigent defense work in addition to his practice.  Marcello has raised $27,289 and has $898 on hand.  

Clark County Department 3

Adam Ganz says he’s a lifelong Las Vegan with a private practice.  He’s raised $124,414, mostly from personal injury attorneys, and has $72,815 on hand.  

Monica Trujillo has represented indigent defendants as a Clark County public defender. In 2013 she became a Special Public Defender and is qualified to represent defendants facing the death penalty.   She’s raised $34,019 and spent all but $3,445.  

Michael Miceli has been an attorney for 13 years. He’s worked in the federal public defender’s office and is currently in private practice, specializing in defense.  He’s raised $2,249 and has $767 on hand.  

Clark County Department 4

Three candidates are seeking to replace Judge Kerry Early, who is not seeking re-election.  

Phil Aurbach has been an attorney for 42 years, as a prosecutor and in private practice, primarily in business litigation.  Aurbach has raised $60,860 and has $43,824 on hand. 

Nadia Krall has raised $123,189 and has $19,084 remaining in the bank.  She’s been a judge pro tem in Las Vegas Justice Court and served as a mediator in the state’s foreclosure mediation program.  She also serves as an arbitrator in Clark County District Court.  

Barbara Schifalacqua is a career prosecutor.  She’s worked at the Clark County District Attorney’s Office since 2007, as a deputy and chief deputy prosecutor. She’s raised $34,710 and has $15,900 on hand. 

Clark County Department 5

Eric Abbott says he’s been admitted to practice law in Nevada since 1996. He’s served as general counsel for a number of gaming companies and says his background in technology and the law will be a benefit on the bench.  He’s raised $6,649 and has $4,698 remaining.   

Attorney Terry Coffing has been an attorney since 1993 and says he’s presided over trials in state and federal court.   He serves on the Board of Governors of the Nevada State Bar. He’s raised $73,384 and has $29,140 in the bank.

Veronica Barisich has been in private practice for 15 years in Nevada, according to her website.  She’s been a judge pro tem in Small Claims Court and a mediator.  She’s raised no money, spent $621 and reports $621 on hand.

Blair Parker has practiced for 33 years, specializing in personal injury litigation.  He’s been a Justice Court pro tem for 19 years and a court-appointed arbitrator.  He’s raised $8,850 and spent $101.

Clark County Department 15

Judge Joe Hardy Jr. is running for re-election to Department 15, a seat to which he was appointed in 2015 by Gov. Sandoval.  He was elected the following year.

Hardy has a 36.84 percent error rate from Our Nevada Judges.

Hardy reports raising $115,821 in contributions and spending $31,335 but reports having $115,070 on hand.  He says he began the campaign with $44,626 in the bank. 

Tegan Machnich is a deputy public defender who says on her website she is fighting for “the little guy.”  She defends indigents and defendants facing life sentences. She’s raised $13,951 and has $6,791 on hand.

Civil attorney Adam Breeden is also challenging Hardy and takes on the judge directly on his website.

“I have seen him in court seemingly unprepared, struggling to find the correct decision, and willfully disregarding clear, controlling legal precedent,” Breeden says, noting Hardy was appointed a year after losing election to the bench.

Breeden, who specializes in personal injury law, has raised $14,610 and has $2,218 in the bank.  

Clark County Department 19

Kephart has drawn two opponents in the race for Clark County Court Department 19.

Fikisha Miller is one of nine Clark County public defenders seeking a seat on the bench, where former prosecutors have already gained a foothold.   

“Historically speaking, there hasn’t been a lot of public defenders running for judge,” Miller told the Current last month. “Part of it is the nature of our work being intense and we don’t have the time. We also don’t have the money. We don’t have that private law firm money.”

Miller has raised $14,721.  Kephart has raised $60,950.  The third candidate in the race, Crystal Lyn Eller, has raised $550 and taken $20,489 in loans from her law firm.

Kephart has a 9.04 percent error rate of 292 cases, according to Our Nevada Judges. 

As a Deputy District Attorney, Kephart’s convictions were frequently overturned.   

“If you have a gut feeling he’s guilty, he’s guilty based on the feeling, that feeling in your heart and mind after comparing and considering all the evidence is what is meant by abiding conviction and proof beyond a reasonable doubt,” Kephart told jurors during closing arguments in the State of Nevada v. Charles Lee Randolph, a murder trial. 

The Nevada Supreme Court chastised Kephart for the comments in 2001.

“Any prosecutor reasonably knows that a ‘gut feeling’ of guilt is not certainty beyond a reasonable doubt and that such an assertion should never be made to a jury,” the Supreme Court wrote.  “But it is apparent that some prosecutors are not taking to heart this Court’s admonishments not to supplement or rephrase the definition of reasonable doubt. … We are convinced that it has become necessary to take specific action to correct this problem, and we will therefore call the prosecutor to account in this case and in future cases where it may arise.”

In a motion, Kephart responded he was “professionally embarrassed by the court’s opinion” calling him out for his actions.

“I can insure (sic) this Court that the opinion in the Randolph cases and the consequences flowing therefrom have already had a great impact on me, to the point that I can assure the Court that there will not be a bona fide allegation of prosecutorial misconduct against me in the future.”

It was not the last time Kephart’s actions would be in question, as an attorney or a judge.  In 2017 Kephart was censured by the Judicial Discipline Commission for breaching judicial rules by talking with a news crew about the retrial of Kristen Lobato, a woman Kephart prosecuted for murder.  Despite her conviction, Lobato maintained her innocence and won new trials during 15 years in prison. She was released when a judge dismissed the charges in late December 2017.

In late May, the Nevada Supreme Court ruled that Kephart retaliated against  defendant Anthony Williams at sentencing and abruptly removed the man’s chance for parole when the defendant became vocally hostile before the judge. 

“I can just give him life without,” Kephart said before meting out multiple sentences for life without parole.  

Supreme Court Justice Pickering wrote that Kephart gave no legal reason for suddenly altering the sentence, which had been rendered.  

“In fact, we conclude that the district court judge erred in retaliating against Williams by imposing life without the possibility of parole sentences,” Pickering wrote. 

Clark County Department 21

Caesar Almase has been an attorney for 18 years, including five as a public defender before moving on to private practice, where he sometimes does personal injury work, according to his website. He’s raised $18,800 and has $458 on hand.  

Perennial candidate Bruce Gale has been in private practice for almost three decades. He is experienced in a variety of areas of law, according to his website, and has served as a District Judge pro tem.

Gale has raised $851 and spent the same.

Tara Clark Newberry is a police officer turned attorney. She’s served as a foreclosure mediator since 2009 and is licensed to practice in Nevada and California. She’s raised $31,004 and has $4,450 remaining.  

Jacob Reynolds is a private attorney who focuses on complex commercial litigation, according to his website.  He leads the campaign fundraising in the race with $87,848 in contributions and has $50,233 remaining.  

Clark County Department 23 

Jasmin Lilly-Spells has been Chief Deputy Public Defender with the Clark County Public Defender’s officer for more than a decade, according to her website, where she defends the legal needs of indigents. She’s also served as a Court-Appointed Special Advocate (CASA) for abused and neglected children and volunteers her time on cases for Nevada Legal Services.

Lilly-Spells has raised $23,370 and has $3,226 on hand.

Jim Sweetin “is a career prosecutor with the Clark County District Attorney’s Office where he has worked for the past 25 years,” according to his website. Sweetin has raised $40,418 and has $11,618 on hand.  

Karl W. Armstrong is the Appeals Officer for the Nevada Department of Administration.  He’s been a deputy attorney general and an assistant general counsel for the University and Community College System of Nevada, according to his website.

He’s also a member of the Nevada Judicial Discipline Commission, but dismisses the notion that the position gives him access to confidential information about pending inquiries into sitting judges that is unavailable to other candidates.

“All commission business is confidential and is not shared with outside parties unless a public charge is filed. I take my oath seriously,” he said via email.

Armstrong has raised $14,940 and reports $3,522 on hand. 

Craig Friedburg has run for the bench four times previously, according to campaign contribution and expense reports.  He is a judge pro tem, according to his website, which does not say where he serves. 

Clark County Department 24

Judge Jim Crockett is retiring, leaving an empty seat and a five-way race. 

Erika Ballou, a deputy public defender, may be best known for sparking a protest in 2016 when she was told by Judge Herndon to remove a small “Black Lives Matter” pin from her clothing during the sentencing of a client. Herndon said the pin amounted to political speech.   

Ballou has raised no money and has no campaign expenses, according to her filing with the Secretary of State.

Mickey Bohn says he’s been practicing law in Nevada for 36 years.  His private practice focuses on personal injury and real estate, according to his website.  He has raised $63,359 and has $9,970 remaining.

Dan Gilliam has worked for the Clark County Public Defender, as a prosecutor for the City of Henderson, and most recently in private practice as a criminal defense attorney, according to his website.  He’s raised $46,015 and has $10,088 on hand.

Dina Rinetti has 13 years of experience, all of it as a Clark County prosecutor where she has worked in the Special Victims Unit. She has raised $32,386 in campaign contributions and has $20,165 remaining.    

Joe Vadala began his career in private practice with an emphasis on family law, but aside from a stint with the Peace Corps, he has spent much of the last 25 years with the Nevada Attorney General’s office where he represents the Department of Transportation.  He has raised $25,110 and has $4,921 on hand.  

Department 28

James Cavanaugh has 25 years of experience defending complex construction defect and commercial litigation, including professional negligence and wrongful death cases, according to the website for his employer. He reports no campaign contributions and no expenses.

Judge Ron Israel was in private practice as a personal injury attorney before his election to the bench in 2010. Israel has raised $93,962 and has $82,082 remaining.  He has a 25.45 percent error rate, according to Our Nevada Judges.   

Alexandra Beth McLeod says she’s had almost two decades of experience representing plaintiffs and defendants in accident, product liability and catastrophic injury cases.  She has raised $31,313 and has $6,056 on hand. 

Nevada is holding a mail-in primary election because of the COVID-19 pandemic. Ballots must be postmarked by June 9.

Candidates who receive more than 50 percent of the vote in the primary win the election.  In races where no candidate receives a majority, the two candidates with the most votes proceed to the general election in November.   

Note: The original version of this story inadvertently left out Department 23 candidate Jasmin Lilly-Spells.