Nevada Prosecutorial Misconduct

A study of criminal appeals from 1970 to the present revealed 162 Nevada cases in which the defendant alleged prosecutorial error or misconduct. In 23, judges ruled a prosecutor’s conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In eight, a dissenting judge or judges thought the prosecutor’s conduct prejudiced the defendant.

Of the 23 cases in which courts ruled the prosecutor’s conduct prejudiced the defendant, 20 involved improper trial arguments or tactics. The remaining three involved the prosecution withholding exculpatory evidence from the defense.

Celebrity boxer, referee, author, actor, Judge Mills Lane, who starred in the “Judge Mills Lane Show,” prosecuted eight of the 164 cases in which defendants alleged prosecutorial error or misconduct. Lane worked as a Washoe County trial prosecutor until he won the election for district attorney in 1982. He served as district attorney until 1990, when he was elected district judge. He was perhaps most well-known for his role in disqualifying Mike Tyson in the heavyweight championship match for biting the ear of Evander Holyfield.

In four cases, judges ruled his conduct did not prejudice the defendant and upheld convictions. In two cases, state Supreme Court judges ruled Lane concealed evidence suggesting the defendant’s innocence and reversed the convictions. In another two, judges ruled his improper trial comments and tactics warranted reversing the defendant’s conviction or indictment.

Former Clark County assistant district attorney Melvin Harmon prosecuted at least eight of the 164 cases in which defendants alleged prosecutorial error or misconduct. In five, judges ruled his conduct was harmless error. In one, judges ruled his conduct prejudiced the defendant and reversed the conviction. In another, judges ruled his conduct deprived the defendant of a fair sentencing proceeding and vacated the death sentence. In one, a dissenting judge thought his conduct prejudiced the defendant and would have reversed the conviction.

In May 1996, the state Supreme Court reversed Victor Jimenez’ murder conviction and death sentence because Harmon withheld exculpatory evidence from the defense and jury.

After two men were stabbed to death at a Las Vegas bar, police arrested Jimenez. He provided an inculpatory statement, which was not recorded, and the state eventually charged him with the murders.

During the investigation, police discovered other strong leads and suspects. Witnesses overheard two men talking about the murders, one of whom had a knife. Two days after the murders, police arrested the two men for a robbery. Less than a month after the murders, someone found a knife in the toilet at the same bar where the victims were stabbed to death. Evidence showed that just a few days before the murder, someone threatened to kill the bartender.

Police officers said they made reports detailing these additional suspects and leads. But the reports were not included in the files Harmon provided to Jimenez’s defense counsel. Harmon also failed disclose a deal the state made with one of the state’s witnesses, a jailhouse informant.

Jimenez’s cell-mate, who was incarcerated on a felony drug charge, told police that he overheard Jimenez saying he “stabbed the guy.” The next day, police released the informant on his own recognizance. His charges were eventually dropped. Nine months earlier, the state had dropped charges against him in return for help in another case.

At trial, the informant testified that he didn’t give police information in other cases and said he helped police in this case because he felt it was something he had to do. He said no one promised him anything and he received no benefits from talking to the police.

In the opinion reversing Jimenez’s conviction, the state Supreme Court found a “reasonable probability” that the jury would have reached a different verdict had the state disclosed evidence of leniency for the informant and other leads in the investigation of the murders.

“Even if the prosecutor was unaware of Thomas’s history as a police informant and the benefits he had received, any failure to disclose material evidence would be reviewable for prejudice to the defendant,” wrote the court. “Moreover, when the police do not reveal a witness’s informant status to the prosecutor, the state attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law enforcement officers.’”

One month earlier, a dissenting judge wrote that he would have reversed a first-degree murder conviction in a case prosecuted by Harmon because of similar conduct.

In April 1996, the state Supreme Court upheld Frank D’Agostino’s murder conviction despite evidence suggesting that the state, represented by Harmon, concealed evidence of a deal with the prosecution’s main witness.

Justice Charles Springer dissented, holding that the state’s principal witness “may have been influenced by a hope for benefit or fear of harm from the State” and the state did not disclose “full information about the relationship between the prosecution and the witness.”

“The jury might have taken an entirely different view of her testimony if it had known all of the facts relating to her testimony,” Springer wrote. “This effect on the jury is the same whether the failure to disclose was knowing or unknowing with regard to the prosecutor who actually presented the State’s case.”

In July 2001, the state Supreme Court vacated Vernell Evans’s death sentence because Harmon elicited improper statements, vouched for the credibility of witnesses, mischaracterized the term “reasonable doubt” and made other improper remarks at trial.

In his appeal to the state Supreme Court, Evans alleged that the state withheld a variety of information from his defense counsel, including information that one of the state’s witnesses testified in return for benefits. He also alleged the state withheld evidence that the same witness had previously helped with other cases. The majority held these alleged discovery violations did not prejudice Evans and upheld his conviction but vacated his sentence due to Harmon’s improper trial conduct.  ¶ 9:59 PM