Posts Tagged ‘judicial discipline’

Note: The following story was originally published by ProPublica, “an independent, nonprofit newsroom that produces investigative journalism in the public interest.” It is republished with permission.

The behavior of Bill Kephart, who led the murder prosecution of Fred Steese, was repeatedly lambasted by the Supreme Court of Nevada. But that didn’t stop him from becoming a judge. This month he was charged with misconduct in that position too.

by Megan Rose, ProPublica

May 26, 2017

In the legal world, prosecutors are rarely called out by name. Their misconduct is usually attributed to unidentified prosecutors or the “State” in rulings by appellate judges. But as a Las Vegas prosecutor, Bill Kephart — now a judge — achieved a dubious distinction: He was chastised publicly.

The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.

Fred Steese served more than 20 years in prison for murder even though evidence in the prosecution’s files proved he didn’t do it. But when the truth came to light, he was offered a confounding deal. Read the story.

The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.

Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:

  • In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
  • In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
  • In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
  • In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial…an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
  • In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)

In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her. Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.

Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney. Another time a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials. Regardless, he later became a chief deputy.

Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.

Kephart declined several requests for comment.

Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where he today he presides over civil, construction and criminal cases.

Update, May 31, 2017: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”

Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.




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photoAs anti-mandatory judicial retirement trends across 14 states, an Indiana state senator proposes a bill to eliminate his state’s current mandatory retirement age of 75 for state appellate judges. “We’ve got lawyers in their 80’s whose minds are steel traps,” he says in this morning’s Wall Street Journal, “A New Lease for Old Judges.”

But steel traps? In today’s polarized political climate, partisans put more weight on what side of the political aisle a jurist sits — well before they consider whether to keep them around into their dotage. For the fervent liberal or conservative, a judicial “mind like a steel trap” is attractive only when it’s closed to the opposing side.

For a number of reasons, however, not the least being my belief in the axiom that power corrupts, I advocate consistently for term limits to rein in the powerful. Indeed, this is why I wholeheartedly agree with Indiana University law professor Charles Geyh’s assessment that for judges, “Age restrictions really are a proxy for term limits.”

So age restrictions are a good thing. Besides, even with politicians and judges acting more like aging rock stars who never say die, whatever happened to for every time there is a season?

Running on empty.

photoBeyond arguing that there’s plenty of ‘gas left in the old tank,’ proponents of an ageless judiciary, also offer up the somewhat specious reasoning that because states have judicial disciplinary mechanisms in place to punish or remove judges, there’s no longer any reason to impose mandatory retirement ages on judges.

As WSJ reporter Ashby Jones explains, the mandatory retirement ages for judges were established “long before states had developed formal processes to get rid of judges who had become ill or suffered mental decline.”  

But according to data gleaned by Citizens for Judicial Accountability, a self-described “nonpartisan citizens’ grassroots organization,” out of an estimated 10,000 judicial complaints it claims were analyzed by the American Judicature Society, “Statistically, only one out of a hundred complaints or 1% and probably less results in a determination.”

Rather than relying exclusively on the purported watchdog vigilance of judicial accountability commissions, if state lawmakers want to keep aging judges on the bench —  to safeguard the public’s faith in the courts against the potential of a mentally and physically enfeebled judiciary — lawmakers should follow 7th Circuit Federal Appellate Court Judge Richard Posner’s advice for “the nation’s premier geriatric occupation.”

So that things don’t just wander in and get mangled by a mind that’s become a rusty steel trap — after 70, Judge Posner recommends judges be required to take “a test of mental acuity every five years.”


Photo Credits: “Bear trap,” by Minnesota Historical Society at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution; “Detail from Corrupt Legislation. Mural by Elihu Vedder. Lobby to Main Reading Room, Library of Congress Thomas Jefferson Building, Washington, D.C. Main figure is seated atop a pedestal saying “CORRUPT LEGISLATION” at Wikipedia Commons, Photographed 2007 by Carol Highsmith who explicitly placed the photograph in the public domain; “Out of gas,” by 2nd2Nunn Photography at Flickr via Creative Commons-licensed content requiring attribution and share alike distribution.

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When the Hon. Elizabeth Halverson sat in Nevada’s Eighth Judicial District, she took comfort in the ministrations of her ill-used bailiff, Johnnie Jordan. As part of her routine of treating Jordan like her personal manservant, Judge Halverson ordered Jordan “to massage her feet, neck and shoulders, or some combination of those body parts.” See “Bailiff Testifies About Judge Halverson and also the “Findings of Fact” at page 11, lines 24-26 of “In the Matter of the Honorable Elizabeth Halverson, District Court Judge, Eighth Judicial District Court, County of Clark, State of Nevada, Findings of Fact, Conclusions of Law and Imposition of Discipline (Filed November 17, 2008).”

No tender mercies.

But there were no tender ministrations today when the Nevada Supreme Court found that “sufficient clear and convincing evidence was introduced to conclude that Judge Halverson committed willful misconduct in violation of multiple provisions of the Nevada Code of Judicial Conduct.” A tip of the hat to an esteemed Nevada colleague who this afternoon informed me of the Nevada Supreme Court’s Order of Affirmance,” “In the Matter of the Honorable Elizabeth Halverson, District Court Judge, Eighth Judicial District v. Nevada Commission on Judicial Discipline.”

No “Tracy Turnblad” in this tale. File:John Waters Carlton Cannes.JPG

Judge Halverson’s misadventures in Nevada’s largest judicial district are reminiscent of an especially bizarre John Waters movie. But unlike the amiable lead in “Hairspray,” the protagonist in this reality story wasn’t as sympathetic.

I say this even though I know that on September 4, 2008, the besieged jurist became a victim of domestic violence. As though being accused of mishandling trials, sleeping in court, improperly contacting jurors during deliberations, and abusing staff wasn’t enough, her husband beat her with a frying pan that September 4th.

Edward Halverson was sentenced to 3 to 10 years in prison after pleading guilty to one count of battery with a deadly weapon with intent to cause substantial bodily harm.

Halverson’s troubles, though continued. She was also found liable in a defamation suit brought by her former legal assistant Ileen Spoor and was ordered to pay a $50,000 judgment. See “Woman wins case against ex-judge.”

The end of the line.

Judge Halverson’s odd reality tale, which had its denouement today, has been grist for the media mill over the past 3 years. It started when she was suspended in July 2007. And when the bases for the suspension became known, it got weirder still.

Then she had to campaign for reelection while at the same time fighting the Judicial Disciplinary Commission to keep her job. And fight she did as the matter dragged on and on.

But it has now finally come to a close. But stay tuned. Somehow, there’s always more. See, for instance,“Bailiff in Halverson case arrested, charged with sexual assault.

But for more about Elizabeth Halverson, see The ABA Journal’s report, “You’re NOT the Boss of Me,Judge Halverson banned from courthouse,”Las Vegas Weekly : – The trials of Elizabeth Halverson, andLess than honorable behavior.”

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