November 2008 Archives

Valdez v. State - The facts of this capital case are highly unusual in that when the jury returned its verdict of guilt on the charge of first-degree murder, the foreperson announced that they had also reached a decision as to whether Valdez should receive the death penalty.  In other words, the jury decided the penalty before the penalty hearing.  The Nevada Supreme Court, in a 5-2 conviction reverses the judgment.  The opinion is authored by Justice Hardesty.  Justices Gibbons and Parraguirre dissented.deamonTools v.4

The Court first concludes that the district court (Judge Bonaventure) erred by failing to instruct the jury in writing, after the close of argument, that it was not to deliberate as to Valdez's possible penalty until after the sentencing hearing.deamonTools v.4

The Court next finds that the jury acted improperly by deliberating the penalty while deciding the issue of guilt and that the district court abused its discretion in denying a mistrial based upon this misconduct.deamonTools v.4

The Court next clarifies the proper harmless-error analysis for prosecutorial misconduct of constitutional and nonconstitutional dimenstion.  The Court finds that the prosecutors engaged in several instances of misconduct throughout the trial and that this misconduct contributed to the cumulative error that warrants reversal of the judgment of conviction.deamonTools v.4

Disclosure - I am counsel for Valdez.deamonTools v.4

The Court issued a third opinion today, Boucher v. Shaw.  It involves a certified question from the Ninth Circuit under NRAP 5 concerning whether under NRS 608 individual managers can be held liable as employers for unpaid wages.deamonTools v.4

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In re: William M. & In re: Marques B. - these are consolidated appeals from juvenile court orders certifying the appellants for criminal proceedings as adults on charges involving the use of a firearm.  The Court summarizes its holding:deamonTools v.4

" These appeals center on Nevada's presumptive certification statute, which consists of NRS 62B.390(2) and (3).  These provisions create a rebuttable presumption that juveniles who are over 13 years of age and charged with certain enumerated offenses fall outside of the jurisdiction of the juvenile court and must therefore be transferred to the district court for adult criminal proceedings.  In particular, we examine NRS 62B.390(3)(b)'s rebuttal requirements in light of the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.  Under NRS 62B.390(3)(b), to rebut the presumption of certification, the juvenile court must find clear and convincing evidence that the juvenile's criminal actions were substantially influenced by substance abuse or emotional or behavioral problems that may be appropriately treated within the jurisdiction of the juvenile court.  Appellants argue that NRS 62B.390(3)(b) requires juveniles to admit to the charged, but unproven, criminal actions, which implicates the Fifth Amendment right against self-incrimination and the constitutionality of the presumptive certification provisions.deamonTools v.4

            Thus in resolving these appeals, we initially determine whether the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings.  We conclude that the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings under the United States Supreme Court's decision in In re Gault. Necessarily, we overrule that part of this court's decision in Marvin v. State that improperly concluded that the Fifth Amendment right against self-incrimination did not apply to juveniles in waiver proceedings.deamonTools v.4

            Given the Fifth Amendment's applicability to juvenile certification proceedings, we next address whether NRS 62B.390(3)(b)'s rebuttal terms impinge on the right against self-incrimination by requiring the juvenile to either accede to the criminal court's jurisdiction despite having a substance abuse or emotional or behavioral problem, or to admit guilt, even though that admission could later be used against him in juvenile or adult court proceedings.  We hold that, by requiring a juvenile to admit to the charged criminal conduct in order to overcome the presumption of adult certification, the presumptive certification statute, NRS 62B.390(2) and (3), violates the juvenile's Fifth Amendment right against self-incrimination."deamonTools v.4

Congratulations on the great victory to Kristina Wildeveld & Amicus ACLU of Nevada, National Juvenile Defender Center and Juvenile Law Center.deamonTools v.4

Family Court Judge Vacancies Announced

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From the Nevada Supreme Court:deamonTools v.4

The Honorable Sandra Pomrenze and the Honorable Stefany Miley were elected to the Eighth Judicial District Court of Nevada, Department P and Department 23, respectively, vacating the judicial positions in Departments E and F, in the Eighth Judicial District Court Family Division. The Commission on Judicial Selection is now accepting applications for these positions in Departments E and F.deamonTools v.4

Applications may be obtained via the Supreme Court website at www.nvsupremecourt.us. The last day upon which your application may be filed is Friday, December 19, 2008, at 5:00 p.m. Applications may only be submitted in hard copy. Deliver or send the completed application to the Commission Secretary in accordance with the instructions within the application. (NOTE: use only the application provided for this vacancy.)deamonTools v.4

Recently, the Commission revised its rules to provide for a more open selection process. New Rule 3(C) provides that certain information disclosed on the application, which is not considered confidential, can be made available to the public. New Rule 4(D) also provides that interviews of candidates, discussion of qualifications and balloting for nominations shall be held in public session. deamonTools v.4

A complete copy of the new rules can be found at the Nevada Supreme Court website located at: http://www.nvsupremecourt.us/ccp/judSelection/index.phpdeamonTools v.4

The membership of the Commission consists of the Chief Justice of the Supreme Court, lawyers, and laypersons. If you have any questions, please call Janice Frayo at the Administrative Office of the Courts at (775) 684-1706. deamonTools v.4

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The Nevada Supreme Court will sit en banc and will hear oral arguments in Carson City on December 1 and 2:deamonTools v.4

Monday, December 1, 2008

49351 V AND S RAILWAY VS. WHITE PINE COUNTY
2:00 PM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) deamonTools v.4

Tuesday, December 2, 2008

50625 REGENCY TOWERS VS. DIST. CT. (LAS VEGAS INT'L COUNTRY CLUB)
9:30 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) deamonTools v.4

49396 RIVERA VS. PHILIP MORRIS, INC. (NRAP 5)
11:00 AM 30 min
Carson City Courtroom - Second Floor
En Banc (Full Court ) deamonTools v.4

US Supreme Court grants cert. in 2 cases

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Via Scotusblog, the United States Supreme Court granted certiorari in two new cases today.  Nken v. Mukasey will address the standard for barring deportation pening judicial review of an alien's plea for asylum or other relief from being deported.  In U.S. v. Denedo will address whether a former service member whose conviction in a military court has become final may nevertheless challenge the verdict within the military appeals court system.

There's not enough money for primary and secondary education, critical health care, rebate checks for the elderly poor, college education, child welfare and juvenile serviceslocal government operations, and a number of other basic government programs, but apparently there's enough money for the death penalty. deamonTools v.4

With the current economic crisis at the local, state and national levels, all government programs -- including the death penalty -- should be evaluated as to whether they provide a benefit to the public and whether those benefits are worth the cost of the program.  In this time when programs such as prenatal care and cancer treatments are no longer being funded, despite their proven success, it is necessary to ask why we are paying for capital punishment.deamonTools v.4

The death penalty is a costly enterprise.  Capital trials require appointment of two attorneys instead of one; Nevada attorneys appointed to take capital cases are paid $125 an hour, $25 more than other appointed counsel in criminal cases; extra time, which means extra money, is required for jury selection and lengthy penalty phases; and mitigation investigation, which is required by the federal and state constitutions, usually costs tens of thousands of dollars, or more, for mitigation specialists, travel and expert witnesses.  Most of these costs are incurred even if the case eventually negotiates to a sentence of less than death.  In the event that the State obtains the death penalty, the costs continue to mount.  Counsel is required for state and federal post-conviction proceedings, but is discretionary in other cases.  Post-conviction proceedings involve further investigation and mitigation evaluations and usually take over a decade, whereas other murder cases are often resolved to finality in less than half of that time.  Prison costs are also higher as death row inmates are housed in single cells in a high security prison, at a cost which is about $10,000 per year higher than the cost per year of other inmates.deamonTools v.4

Other states (California, Maryland, KansasWashington, New Jersey, Tennessee, North Carolina) have completed studies concerning the cost of the death penalty and all have concluded that the cost of the death penalty far exceeds the cost of a system which imposes a maximum penalty of lifetime incarceration.  The federal government also finds that death penalty cases are far more expensive than cases in which the death penalty could be sought but is not.  The economic realities of the death penalty are further reflected by the fact that in Nevada rural counties, with their very limited budgets, have not sought the death penalty in years while urban Clark County remains the source of nearly all death sentences in the last five years.deamonTools v.4

It's time for Nevada and Clark County to assess whether we can afford the death penalty.  Part of the analysis is the cost.  The other part of the analysis is the benefit to the public.  I submit there is none.  There are few credible studies which show any kind of deterrent effect.  To the contrary, the murder rate of non-death penalty states is far below the murder rate of states with the death penalty.  Life imprisonment is sufficient to make the public safe.  Indeed, in the words of a former San Quentin warden, who presided over several executions, "resources now spent on the death penalty could be used to investigate unsolved homicides, modernize crime labs and expand effective violence prevention programs, especially in at-risk communities.  The money could also be used to intervene in the lives of children at risk and to invest in their education -- to stop future victimization. . . .  To take a life in order to prove how much we value another life does not strengthen our society.  It is a public policy that devalues our very being and detracts crucial resources from programs that make our communities safe."  deamonTools v.4

We are spending millions of dollars a year to enforce the death penalty above what it would cost to sentence first degree murderers to life in prison without parole. Imagine how that money could be spent: on education, on helping poor communities, on basic medical care, or a host of other programs that are watching their budget be cut at drastic levels.deamonTools v.4

An honest evaluation of the death penalty in Nevada is long overdue. deamonTools v.4

Learning something new

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While perusing through the newest posting of unpublished orders I found State v. District Court (Martinez), which is an order denying the State's original petition for a writ of mandamus or procedendo.  I thought I was up on all of the writs: the habeas, the mandamus, the prohibition and even the coram nobis.  Procedendo was a new one to me -- so I consulted the source of information on all subjects, Wikipedia, and learned the following:deamonTools v.4

"In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment.deamonTools v.4

"The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be."deamonTools v.4

State ex rel. Davey v. Owen, 133 Ohio St. 96, 106 (Ohio 1937).deamonTools v.4

The writ of procedendo ad judicium was the earliest remedy for the refusal or neglect of justice on the part of the courts.It was an original writ, issuing out of chancery to the judges of any subordinate court, commanding them in the king's name to proceed to judgment, but without specifying any particular judgment. In case of disobedience or of neglect on the part of the judges to whom it was addressed, or refusal by them to act, they were liable to punishment for contempt.deamonTools v.4

Inherently, the most important limitation on this jurisdiction is that the writ of mandamus is not a proper remedy to control or direct the decisions of inferior courts in matters wherein they have judicial cognizance and discretion. In other words, so far as the writ affects the action of inferior courts, its use is not to be extended to compel the rendition of a particular judgment, in accordance with the views of a higher court.deamonTools v.4

In re Press Printers & Publishers, Inc., 12 F.2d 660, 664 (3d Cir. 1926)deamonTools v.4

It corresponds to certiorari, except that certiorari is a higher court's order to a lower court to send the record of a case to it for appellate review."deamonTools v.4

It appears that there are no Nevada published opinions concerning the writ of procedendo.  Anyway, something new for a Friday morning.  Thought I should share.  Back to work.deamonTools v.4

District Court Assignments

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The Eighth Judicial District Court has issued new case assignments and new criminal track information.deamonTools v.4

All Criminal CasesdeamonTools v.4

Donald MosleydeamonTools v.4

Kathy HardcastledeamonTools v.4

Civil and Criminal CasesdeamonTools v.4

Ken CorydeamonTools v.4

Valorie VegadeamonTools v.4

Doug HerndondeamonTools v.4

Jackie GlassdeamonTools v.4

Elissa CadishdeamonTools v.4

Jennifer TogliattideamonTools v.4

Elizabeth GonzalezdeamonTools v.4

Michelle LeavittdeamonTools v.4

Michael VillanideamonTools v.4

David BarkerdeamonTools v.4

David WalldeamonTools v.4

Valerie AdairdeamonTools v.4

Stefany MileydeamonTools v.4

James BixlerdeamonTools v.4

All Civil CasesdeamonTools v.4

Linda BelldeamonTools v.4

Doug SmithdeamonTools v.4

Jessie WalshdeamonTools v.4

Mark DentondeamonTools v.4

Abbi SilverdeamonTools v.4

Tim WilliamsdeamonTools v.4

Allan EarldeamonTools v.4

Susan JohnsondeamonTools v.4

Kathleen DelaneydeamonTools v.4

Some people might wonder why it is that experienced judges Mosley and Hardcastle have a full time criminal calendar, despite their previous experience in handling civil cases, while other judges who have primarily criminal law backgrounds, such as judges Smith and Silver, have been assigned all civil caseloads.  Chalk it up to a system of decisions-made-by-seniority rather than decisions-made-by-logic.  In any event, there are new assignments on the track system for criminal cases:deamonTools v.4

Track 1 - LVJC 1 (Lippis) to DC 5 (Glass) or DC 9 (Togliatti)deamonTools v.4

Track 2 - information not availabledeamonTools v.4

Track 3 - LVJC 3 (Abbatangelo) to DC 11 (Gonzalez) or DC 3 (Herndon)deamonTools v.4

Track 4 - HJC 3 (GIbson) & LVJC 4 (Saragosa) to DC 2 (Vega) and DC 23 (Miley)deamonTools v.4

Track 5 - LVJC 5 (Jansen) & NLV 3 (Lee) to DC 14 (Mosley)deamonTools v.4

Track 6 - LVJC 6 (Oesterle) & NLV 2 (Tyrrell) to DC 1 (Cory) or DC 24 (Bixler)deamonTools v.4

Track 7 - LVJC 7 (Bennett-Haron) & HJC 2 (George) to DC 12 (Leavitt) or DC 18 (Barker)deamonTools v.4

Track 8 - LVJC 8 (Zimmerman) & NLV 1 (Dahl) to DC 20 (Wall) or DC 21 (Adair)deamonTools v.4

Track 9 - HJC 1 (Burr) & LVJC 9 (Bonaventure) to DC 6 (Cadish) or DC 17 (Villani) deamonTools v.4

Track 10 - LVJC 10 (vacant) & Rural Justice Courts to DC 4 (Hardcastle)deamonTools v.4

Las Vegas Justice Court Departments 2 and 10 are vacant due to the election of Abbi Silver and Doug Smith as district court judges.  This report does not provide tracking information about Departments 11 (Eric Goodman) and 12 (Diana Sullivan).  I don't know what this means.deamonTools v.4

Nevada Supreme Court issues an opinion

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Yea!!deamonTools v.4

Olivares v. State - Olivares was convicted of first-degree murder with use of a deadly weapon.  His counsel raised questions about his competency prior to trial, but the district court (Judge Bonaventure) refused to hold a hearing.  The Court, sitting en banc, concludes that the district court abused its discretion and denied Olivares his rights to due process by failing to hold the hearing.  The judgment is reversed and the case is remanded to the district court to conduct a competency hearing and a new trial in the event that Olivares is found competent to stand trial.deamonTools v.4

Congrats to Norm Reed and Nancy Lemcke of the Clark County Public Defender's Office.deamonTools v.4

New unpublished decisions have been posted by the Nevada Supreme Court.  SCR 123 states that these unpublished orders shall not be regarded as precedent and shall not be cited as legal authority.deamonTools v.4

State v. Spina - the Court denies the State's appeal from an order of the district court dismissing a charge of first-degree murder with use of a deadly weapon.  The State had argued that the defendant could be charged with felony murder based upon an allegation of burglary with "ex-felon in possession of a firearm" as the predicate felony for burglary.  The Court agreed with the district court that "burglary cannot be predicates solely on entry into a structure or vehicle by an ex-felon in possession of a firearm."  The Court also agreed with the district court that "ex-felon in possession of a firearm" is not inherently dangerous.  "Thus, there is no justification for the imputation of implied malice under the felony-murder rule.  Accordingly, we conclude that it would be impermissible to allow the State to bootstrap 'ex-felon in possession of a firearm' into burglary in order to sustain a conviction for murder in the first-degree under the felony-murder rule."deamonTools v.4

* There appears to be no case authority in Nevada directly addressing this issue.  I'm puzzled by the Court's decision not to publish this decision as an opinion. deamonTools v.4

Ledezma v. State - the Court rejects the defendant's argument that NRS 453.3405, which allows for a lesser sentence if the defendant offers substantial assistance to law enforcement, violates his equal protection rights because persons, like him, who are subject to an INS immigration hold cannot be released from custody and participate in "buys" for police officers.deamonTools v.4

Mejia v. State - the Court finds that the district court abused its discretion in failing to appoint counsel for post-conviction proceedings in a case in which the defendant was convicted of sexual assault on a minor and lewdness with a minor and was serving life sentences.deamonTools v.4

 Winston v. State - the Court finds a jury instruction on implied malice as it relates to attempted murder to be incorrect, but finds the error to be harmless.deamonTools v.4

A bad few days for a few Nevada judges

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The Nevada judiciary has had better weeks.deamonTools v.4

The Nevada Commission on Judicial Discipline has issued its Findings of Fact, Conclusions of Law and Imposition of Discipline against Judge Elizabeth Halverson.  The bottom line of the 28 page order is that the Commission finds that Halverson violated multiple sections of the Nevada Code of Judicial Conduct and that she lied under oath during the evidentiary proceedings, and concludes that she should be permanently removed from judicial office.deamonTools v.4

Also of note, is the possibility that Las Vegas Justice of the Peace Abbatangelo may be charged with battery domestic violence.  The Las Vegas Review Journal reports that Abbatengelo's wife, who is the sister of District Court Judge Michelle Leavitt, has accused Abbatengelo of choking her last Wednesday and physically abusing her over a two-year period.  District Attorney David Roger said that his office received the complain and will decide this week whether to file criminal charges against the judge.deamonTools v.4

Finally, Michael Mosley, son of District Court Judge Donald Mosley, is in custody based upon an allegation that he was driving a truck involved in street racing which resulted in a crash and the death of a 15-year old girl.  He was not the driver of the truck which flipped over, killing Olivia Hyten.deamonTools v.4

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This Week

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Wednesday, November 19deamonTools v.4

State Bar CLE - Legal Ethics: The Year in ReviewdeamonTools v.4

Thursday, November 20deamonTools v.4

Nevada Supreme Court opinion release daydeamonTools v.4

Friday, November 21deamonTools v.4

9:00 - Legislature's Advisory Commission on the Administration of Justice meets in Carson City, videoconferencing is available to Las Vegas and the meeting may be watched via the Legislature's website.deamonTools v.4

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The United States Supreme Court and Nevada Supreme Court will will resume oral arguments on December 1.deamonTools v.4

The Las Vegas Justice Court offers amnesty for outstanding traffic tickets through February 9, 2009.deamonTools v.4

Last week the United States Supreme Court heard oral argument in Bell v. Kelly.  Today the Court dismissed the case after finding that cert. had been improvidently granted.  The case concerned the degree of deference that federal habeas coruts must give to state court findings.

US Supreme Court grants cert. in 5 cases

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The United States Supreme Court granted certiorari in five cases today:deamonTools v.4

Caperton v. AT Massey Coal Company, Inc:  Whether a judge's failure to recuse himself from a case in which he received substantial campaign donations from one of the parties violates the Due Process righs of the other party.deamonTools v.4

Yeager v. United States:  Whether, under the Double Jeopardy Clause, the government may retry defendants acquitted of some charges on factually related counts for which the jury failed to reach a verdict.deamonTools v.4

Abuelhawa v. United States - Whether a person who uses a cell phone to buy drugs solely for personal use, which is a misdemeanor, can be charged with the separate crime of using a phone to facilitate the sale of drugs, which is a felony.deamonTools v.4

Citizens United v. Federal Election Commission - Whether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-damand to cable subscribers.deamonTools v.4

Dean v. United States: Whether, under 18 USC 924(c)(1)(A)(iii), the mere discharge of a firearm during a crime of violence or drug trafficking, even if accidental, is subject to a 10-year sentencing enhancement.deamonTools v.4

Scotusblog provides links to all available briefs and lower court opinions.deamonTools v.4

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This Week

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Monday, November 10deamonTools v.4

US Supreme Court orders released (no new cert grants were ordered)deamonTools v.4

10:00 - US Supreme Court oral argument in Chambers v. United States (whether failure to report to prison is a "violent felony" under the Armed Career Criminals Act).deamonTools v.4

11:00 - US Supreme Court oral argument in United States v. Hayes (whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of "domestic violence").deamonTools v.4

1:00 - US Supreme Court oral argument in Melendez-Diaz v. Massachusetts (whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in prosecution).deamonTools v.4

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Tuesday, November 11 deamonTools v.4

Holiday.  Courts closed.deamonTools v.4

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Wednesday, November 12deamonTools v.4

10:30 - Nevada Supreme Court oral argument in Jeffries v. StatedeamonTools v.4

11:30 - Nevada Supreme Court oral argument in Courtesy Cars v. MorgandeamonTools v.4

1:30 - Nevada Supreme Court oral argument in Perez-Marquez v. StatedeamonTools v.4

United States Supreme Court oral argument in Pleasant Grove City, UT v. Summum (whether donated monuments displayed in public parks qualify as private speech, thus requiring municipalities to display monuments from all other donors).deamonTools v.4

United States Supreme Court oral argument in Bell v. Kelly (whether the deferential standard in the federal habeas corpus statute should be applied to claims a state court did not conisder).deamonTools v.4

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Thursday, November 13deamonTools v.4

Nevada Supreme Court opinion release daydeamonTools v.4

10:00 - Nevada Supreme Court oral argument in Anderson v. Ruppco Inc.deamonTools v.4

10:30 - Nevada Supreme Court oral argument in Madruga v. AguilardeamonTools v.4

1:30 - Nevada Supreme Court oral argument in Fields v. StatedeamonTools v.4

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Friday, November 14deamonTools v.4

10:00 - Nevada Supreme Court oral argument in Ferguson v. Landmark HomesdeamonTools v.4

10:30 - Nevada Supreme Court oral argument in State Engineer v. Morris Delee Revocable TrustdeamonTools v.4

11:30 - Nevada Supreme Court oral argument in Cadle Co. II vs. FountaindeamonTools v.4

1:30 - Nevada Supreme Court oral argument in Las Vegas Paving v. Nevada PowerdeamonTools v.4

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Wednesday, November 12, 2008

47176 JEFFRIES (CHRISTOPHER) VS. STATE
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

47582 COURTESY CARS VS. MORGAN
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

47691 PEREZ-MARQUEZ (OSCAR) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

Thursday, November 13, 2008

48037 ANDERSON VS. RUPPCO INC.
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

48548 MADRUGA VS. AGUILAR
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

49417 FIELDS (LINDA) VS. STATE
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

Friday, November 14, 2008

49561 FERGUSON VS. LANDMARK HOMES & DEV., INC. C/W 49038
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

49038 FERGUSON VS. LANDMARK HOMES & DEV., INC. C/W 49561
10:00 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

49410 STATE ENGINEER VS. MORRIS DELEE REVOCABLE TRUST
10:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

49488 CADLE COMPANY II VS. FOUNTAIN
11:30 AM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

49766 LAS VEGAS PAVING VS. NEVADA POWER CO.
1:30 PM 30 min
Carson City Courtroom - Second Floor
Northern Panel (Gibbons/Cherry/Saitta ) deamonTools v.4

Interesting unpublished decisions

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There's not much to discuss concerning today's published opinion, but a few unpublished decisions are interesting.deamonTools v.4

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Dolores-Alvarez v. State - The non-English speaking defendant represented himself at trial.  A Faretta canvass was conducted by the district court, but it did not include a warning that there could be negative consequences to relying on an interpreter in front of a jury.  The Nevada Supreme Court finds that such a warning was not required.  The Court also finds that reversal was not warranted based upon a claim of misconduct, though the Court did find the prosecutor's arguments to be improper:deamonTools v.4

"We observe that some of the prosecutor's statements were problematic -- especially the comment about the victim's motives for recanting her story and the comment that the victim 'deserved to be believed.'  Nonetheless, due to the overwhelming evidence of Alvarez's guilt, the prosecutor's remarks were not prejudicial.  Accrodingly, the prosecutor's statements do not rise to the level of plain error and Alvarez is not entitled to relief on this claim."deamonTools v.4

State v. Stotler - The Court dismisses the State's appeal from an order granting the defendant's motion to suppress evidence.  Although the State filed a notice of appeal with the clerk of the district court, it failed to file a second notice of appeal in the Nevada Supreme Court within 5 judicial days of the district court's ruling, as required by NRS 177.015(2).  The Court rejects the State's request to excuse the mistake based upon ignorance of the law and notes that the statutory requirements to invoke the Court's jurisdiction cannot be excused or waived.  The same issue was presented, with the same result, in State v. Knight.deamonTools v.4

City of Las Vegas v. Eighth Judicial District Court - A municipal court imposed a civil penalty for the act of selling an alcoholic beverage without a valid license and acquitted the defendant of the criminal charge.  The City challenged this ruling in district court.  The district court found that the Double Jeopardy Clause prevented the district court from granting the City's requested relief.  The Nevada Supreme Court rejected the City's petition for a writ of mandamus, but reminded the district court and municipal court that  the violation of the city code provision at issue defined a criminal offense.deamonTools v.4

Reiger v. State - The Court considers whether reversal is required based upon disparagement of the defense by the district court judge (Judge Glass).  The Court considers the issue despite the absence of objection at trial based upon Oade v. State, 114 Nev. 619, 622, 960 P.2d 336, 338 (1998).  It reviewed the legal standard and then noted the following:deamonTools v.4

"Here, the district court mocked defense counsel's impachement of Kelly Souther, an eyewitness, regarding his ability to perceive the Crown Royal bag exit Reiger's driver's side window as Souther was sitting in his car.  Attempting to clarify Souther's line of sight during cross-examination, defense counsel asked Souther: 'your eyes are outside your [car] window, right?'  Without any prompting, the district court interjected: 'I don't know that his eyes were literally outside his window, Mr. Speed.'  The literal absurdity of defense counsel's question, however, would not have been detected by a rational juror had the court not gratuitously remarked upon it.  Moreover, in this one-eyewitness case, the court's sarcasm was especially unwelcome since it came during Souther's impeachment, a critical point in the evidence for the defense given that Reiger's defense theory depended almost exclusively on raising doubts regarding Souther's perception of events."deamonTools v.4

The Court also noted other remarks which evidenced "some irritation with defense counsel" and noted that the record confirmed that the district court directed commands to sit down disproportionately at the defense.  The Court found that the district court's remarks raised concerns under Nevada Code of Judicial Conduct Canon 3B, which requires judges to be "patient, dignified and courteous" when interacting  with counsel and litigants.  The Court nonetheless found that reversal was not warranted as the district court did not fine defense counsel and did not comment on the merits of the defense in front of the jury.  The Court also found that the district court's exasperated tone was animated out of concern for expediting the trial rather than true animus for the defense and the evidence against the defendant was strong.  "Thus, although inappropriate at times, we conclude that the district court's conduct did not constitute plain error."deamonTools v.4

Nevada Supreme Court issues 1 opinion

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A civil case: Waldman v. Maini - something about life insurance, the trust doctrine and the Uniform Simultaneous Death Act.  I stopped reading after the third paragraph, so you're on your own for analysis.

The Nevada State Assembly gained one Democrat and lost one Republican.  The list below shows the composition of the Assembly Judiciary Committee in 2007 and the election status of its members.deamonTools v.4

2007 Assembly Judiciary CommitteedeamonTools v.4

DemocratsdeamonTools v.4

Bernie Anderson - reelecteddeamonTools v.4

William Horne - reelecteddeamonTools v.4

Marcus Conklin - reelecteddeamonTools v.4

Susan Gerhardt - did not seek reelection, April Mastroluca (Democrat) won the seatdeamonTools v.4

Mark Manendo - reelecteddeamonTools v.4

Harry Mortenson - reelecteddeamonTools v.4

John Oceguera - reelecteddeamonTools v.4

James Ohrenschall - reelecteddeamonTools v.4

Tick Segerblom - reelecteddeamonTools v.4

RepublicansdeamonTools v.4

Francis Allen - defeated in primary, Richard McArthur (Republican) won the seat deamonTools v.4

John Carpenter - reelecteddeamonTools v.4

Ty Cobb - reelecteddeamonTools v.4

Ed Goedhart - reelecteddeamonTools v.4

Garn Mabey - did not seek reelection, John Hambrick (Republican) won the seat deamonTools v.4

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The State Senate saw a major shift in power last night as two Republican seats were lost to Democrats, resulting in the Democrats now controlling the Senate with a 12-9 majority.  This should result in a change in the number of senators for each of the parties for the Senate Judiciary Committee.  The 2007 committee members were the following:deamonTools v.4

2007 State Senate Judiciary CommitteedeamonTools v.4

DemocratsdeamonTools v.4

Terry Care - not up for reelectiondeamonTools v.4

Steven Horsford - reelecteddeamonTools v.4

Valerie Wiener - reelecteddeamonTools v.4

RepublicansdeamonTools v.4

Mark Amodei - not up for reelectiondeamonTools v.4

Maurice Washington - not up for reelectiondeamonTools v.4

Mike McGinness - reelecteddeamonTools v.4

Dennis Nolan - not up for reelection  deamonTools v.4

Judicial Elections 2008

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Supreme Court Seat BdeamonTools v.4

Kris Pickering - 41.98%deamonTools v.4

Deborah Schumacher - 39.07deamonTools v.4

None - 18.95deamonTools v.4

Supreme Court Seat DdeamonTools v.4

Mark Gibbons - 54.83deamonTools v.4

Thomas Christensen - 25.22deamonTools v.4

None - 19.94deamonTools v.4

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District Court JudgesdeamonTools v.4

District 8, Dept. 6deamonTools v.4

Elissa Cadish - 64.78deamonTools v.4

Benjamin Childs - 35.22deamonTools v.4

District 8, Dept. 7deamonTools v.4

Linda Bell - 71.22 deamonTools v.4

Robert Spretnak - 28.78deamonTools v.4

District 8, Dept. 8deamonTools v.4

Doug Smith - 70.22deamonTools v.4

Josh Kunis - 29.78deamonTools v.4

District 8, Dept. 10deamonTools v.4

Jessie Walsh - 51.95deamonTools v.4

William Kephart - 48.05deamonTools v.4

District 8, Dept. 12deamonTools v.4

Michelle Leavitt - 67.24deamonTools v.4

Kurt Harris - 32.76deamonTools v.4

District 8, Dept. 14deamonTools v.4

Donald Mosley - 59.06deamonTools v.4

Chris Davis - 40.94deamonTools v.4

District 8, Dept. 17deamonTools v.4

Michael Villani - 62.15deamonTools v.4

Bruce Gale - 37.85deamonTools v.4

District 8, Dept. 22deamonTools v.4

Susan Johnson - 82.13deamonTools v.4

Donn Ianuzi - 17.87deamonTools v.4

District 8, Dept. 23deamonTools v.4

Stefany Miley - 70.37deamonTools v.4

Jason Landess - 29.63deamonTools v.4

District 8, Dept. 25deamonTools v.4

Kathleen Delaney - 62.24deamonTools v.4

Susan Scann - 37.76deamonTools v.4

District 8, Family Div. GdeamonTools v.4

Dianne Steel - 64.59deamonTools v.4

Amy Mastin - 35.41deamonTools v.4

District 8, Family Div. IdeamonTools v.4

Cheryl Moss - 68.48deamonTools v.4

Greta Muirhead - 31.52deamonTools v.4

District 8, Family Div. JdeamonTools v.4

Kenneth Pollock - 52.31deamonTools v.4

Lisa Kent - 47.69deamonTools v.4

District 8, Family Div. KdeamonTools v.4

Cynthia Giuliani - 53.37deamonTools v.4

Vincent Ochoa - 46.63deamonTools v.4

District 8, Family Div. LdeamonTools v.4

Jennifer Elliott - 73.79deamonTools v.4

Dawn Throne - 26.21deamonTools v.4

District 8, Family Div. NdeamonTools v.4

Mathew Harter - 53.22deamonTools v.4

Gayle Nathan - 46.78deamonTools v.4

District 8, Family Div. OdeamonTools v.4

Frank Sullivan - 54.56deamonTools v.4

Ron Israel - 45.44deamonTools v.4

District 8, Family Div. QdeamonTools v.4

Bryce Duckworth - 53.57deamonTools v.4

Carl Piazza - 46.53deamonTools v.4

District 8, Family Div. RdeamonTools v.4

Bill Henderson - 61.87deamonTools v.4

Chuck Hoskin - 38.13deamonTools v.4

District 1, Dept. 2deamonTools v.4

Jim Wilson - 51.93deamonTools v.4

Noel Waters - 48.07deamonTools v.4

Distict 2, Dept. 4deamonTools v.4

Connie Steinheimer - 71.15deamonTools v.4

David Neidert - 28.85deamonTools v.4

District 2, Dept. 6deamonTools v.4

Brent Adams - 64.16deamonTools v.4

Greg Zunino - 35.84deamonTools v.4

District 2, Dept. 9deamonTools v.4

Robert Perry - 57.35deamonTools v.4

Elliott Sattler - 42.65deamonTools v.4

District 2, Dept. 14 Family Div.deamonTools v.4

Linda Gardner 75.47deamonTools v.4

Roger Harada 24.53deamonTools v.4

District 3, Dept. 1deamonTools v.4

David Huff - 55.59deamonTools v.4

Jack Kennedy - 44.41deamonTools v.4

District 3, Dept. 2deamonTools v.4

Leon Aberasturi - 59.29deamonTools v.4

John Schlegelmilch - 40.71deamonTools v.4

District 3, Dept. 3deamonTools v.4

William Rogers - 53.44deamonTools v.4

Thomas Stockard III - 46.56deamonTools v.4

District 4, Dept. 1deamonTools v.4

Mike Memeo - 59.29deamonTools v.4

Mark Torvinen - 47.71deamonTools v.4

District 5, Dept. 1deamonTools v.4

John Davis - 62.30deamonTools v.4

Marla Zlotek - 37.70deamonTools v.4

District 6, Dept. 2deamonTools v.4

Michael Montero - 64.67deamonTools v.4

Kent Maher - 35.33deamonTools v.4

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This Week

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Monday, November 3deamonTools v.4

US Supreme Court hears argument in Wyeth v. Levine (actions under state law for ineffective drug laws), Ysursa v. Pocatello Education Association (1st Amendment and payroll deductions for political contributions), and Carcieri v. Kemprthorne (tribal trust lands).deamonTools v.4

Nevada Supreme Court holds en banc oral arguments.deamonTools v.4

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Tuesday, November 4deamonTools v.4

Election daydeamonTools v.4

US Supreme Court hears argument in FCC v. Fox Television (fines for broadcast of isolated expletives), US v. Eurodif (contracts for uranium and anti-dumping laws) and Jimenez v. Quarterman (whether the reinstatement of an appeal under Texas law tolls or restarts the one-year deadline to file a habeas petition under federal law).deamonTools v.4

Nevada Supreme Court holds en banc oral arguments, including arguments in Mack v. Estate of Mack and Higgs v. State.deamonTools v.4

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Wednesday, November 5deamonTools v.4

US Supreme Court hears argument in Negusie v. Mukasey (federal immigration law and refugees who in engaged in persecution due to threats of death or bodily harm) and Van de Kamp v. Goldstein (whether supervising district attorneys possess absolute immunity against claims they failed to ensure line prosecutors disclosed constitutionally required information to criminal defendants).deamonTools v.4

Bar Admissions Ceremony - Northern NevadadeamonTools v.4

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Thursday, November 6deamonTools v.4

Nevada Supreme Court opinion release daydeamonTools v.4

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Friday, November 7deamonTools v.4

Bar Admissions Ceremony - Las VegasdeamonTools v.4

Clark County Bar Association - New Admittees and Meet Your Judges CelebrationdeamonTools v.4

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The United States Supreme Court granted certiorari in two cases this morning.deamonTools v.4

In District Attorney's Office v. Osborne, the Court will consider whether a person may file an action under 42 USC 1983 or the Due Process Clause to obtain access to biological evidence for purposes of new DNA testing in a case in which his judgment is final and it appears that post-conviction remedies may be procedurally barred. deamonTools v.4

In Atlantic Sounding Co. v. Townsend, the Court will consider whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure.deamonTools v.4

Scotusblog provides links to be petitions, briefs in opposition, replies and amicus briefs. deamonTools v.4

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About this Archive

This page is an archive of entries from November 2008 listed from newest to oldest.deamonTools v.4

October 2008 is the previous archive.deamonTools v.4

December 2008 is the next archive.deamonTools v.4

Find recent content on the main index or look in the archives to find all content.deamonTools v.4

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