Nevada Supreme Court issues 3 opinions, removes judge

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The Nevada Supreme Court issued three opinions today, including one interesting opinion and another opinion which results in the removal of a Family Court judge from the bench.

In Lueck v. Teuton, the Nevada Supreme Court concludes that Family Court Judge Robert Teuton's temporary term expired on the first Monday in January, 2009.  He was appointed by the governor to fill a vacancy in August, 2008.  The Court finds that the seat should have been placed on the November, 2008 ballot and rejected the argument that he is allowed to serve under the appointment until the next general election (November, 2010) in which strict compliance with all election deadlines could be met.  The Court also finds that Robert Lueck lacked standing to bring the challenge, but nonetheless addressed the merits of the issue presented under the Court's supervisory responsibilities over the judicial branch.  The Governor will now be asked to fill the vacant position.

In Glover v. District Court, the Court, in an en banc 4-2-1 decision, denies a petition for a writ of prohibition which sought to prohibit a second trial following a mistrial.  The majority (Justices Pickering, Gibbons, Parraguirre and Douglas) find that there was manifest necessity for a mistrial based upon defense counsel's action of referring to facts that were not in evidence.  Specifically, the State obtained a statement from the defendant after his arrest, but the State did not introduce the statement at trial.  Defense counsel referred to the statement during opening statements, cross-examination of a detective, and closing argument.  He argued that the jurors should ask themselves why the State would not let them see or hear what the defendant said to the police and, following the State's objection which had been sustained, that the tape would be devastating to the State's case.  The district court declined to issue a curative instruction and instead declared a mistrial.    The majority finds that defense counsel was wrong to mention the tape of the defendant's statement and that the district court acted within its discretion in granting the mistrial.

Although the State prevails in this case, there is language from the majority opinion that is useful to the defense bar.  For example, "prosecutor" can easily be substituted for "defense lawyer" in the following:  "For a defense lawyer to make statements to the jury that are not and cannot '"be supported by proof is, if it relates to significant elements of the case, professional misconduct . . . and fundamentally unfair.'"  Washington, 434 U.S. at 513 n.32 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J. concurring)).  Such misconduct "unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal[ ] [and] create[s] a risk, . . . not present in the individual juror bias situation that the entire panel may be tainted.'  Id. at 512."  Additional favorable language is found throughout the opinion.  The opinion also addresses prior consistent statements and negative inferences based upon the failure to produce evidence.

Chief Justice Hardesty and Justice Saitta concurred in part and dissented in part.  They concluded that the district court abused its discretion in granting the mistrial as a curative instruction would have been a sufficient remedy.  Justice Cherry dissented.  He concluded that the defense attorney did not commit misconduct.

There is a statement in the majority opinion which is incorrect.  In footnote 5, the Court states "[T]his court has never differentiated between the state and federal constitutional protection against double jeopardy, and the parties do not suggest a basis for doing so in this case."  In Wilson v. State, 170 P.3d 975 (2007), the Nevada Supreme Court refused to follow the analysis adopted by the US Supreme Court, in United States v. DiFrancesco, 449 U.S. 117, 138-39 (1980), for the federal constitutional guarantee as it concerns an increase of a sentence following remand for a new sentencing hearing.  It found that Article 1, Section 8(1) of the Nevada Constitution provides a more protections than those afforded under the federal constitution and concluded that a defendant's sentence may not be increased on remand.  

Finally, in Ogawa v. Ogawa, the Court addresses an international child custody dispute and other divorce issues. 






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This page contains a single entry by JoNell published on November 12, 2009 2:39 PM.

Oral argument calendar: November 13 was the previous entry in this blog.

Nevada Supreme Court amends rule 30 re: appendix is the next entry in this blog.

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