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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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Here’s a switch, last week Brian Schowalter, a criminal defense lawyer in Durango, Colorado was on the receiving end of a grand jury indictment brought by the district attorney who alleged Schowalter had refused to turn over evidence to the prosecution.

I know nothing about the merits of the case against Schowalter but in a show of support 10 criminal defense lawyers did sit behind the accused at his court appearance on Tuesday, August 13th. And Schowalter’s defense lawyer called the charge “outrageous” while a local colleague added, “It sends a chill through attorneys when they see the district attorney will not only grieve you, but he will use whatever criminal power he’s got to get his way in a case.”

Ham sandwich and short hairs.

File:Ham sandwich.jpgIsn’t this rich? Forget for the moment that after the grand jury indictment, Schowalter must have felt like that chewed-up indictable ham sandwich.

Here we have the otherwise unheard of instance of a defense lawyer accused of supposedly withholding evidence — when it’s something that at least to me, seems more likely to occur at the hands of prosecutors — not defendant’s counsel.

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/7/77/Daumier_dimanche_au_musee.jpg/582px-Daumier_dimanche_au_musee.jpgAs George Carlin once said, “Not only do I not know what’s going on, I wouldn’t know what to do about it if I did.”

In any event, it appears that prosecutors are increasingly being outed for playing fast and loose with the Brady Rule — the unanimous U.S. Supreme Court ruling declaring prosecutors’ have a constitutional obligation to turn over exculpatory evidence to the defense. Also see “A Fair Trial Remedy for Brady Violations – Yale Law Journal.”

File:Wenceslas Hollar - Man with short hair and gown tied at neck (State 1).jpgThe difference here is that unlike that Durango defense lawyer facing a felony charge, prosecutors are rarely brought up by the short hairs for ethical lapses or prosecutorial misconduct.

What me worry?

And it’s not because of any halos either, even though some prosecutors do think they’re better than everyone else at self-policing.

File:Alfred E. Neumann.jpgAnd besides, a lot of them don’t think there’s a problem with the current ethical regimen. Or as Sam Goldwyn famously said about himself, prosecutors may admit to not always being right — but they’re never wrong.

So where’s the problem?1

Meantime, don’t worry about any supposed infrequent ‘lapses’ that cost the wrongfully convicted years behind bars. The easiest outrage to bear is always somebody else’s.

taco bell employee licking shellsWhat’s more, as some D.A.s contend, it’s not like defense attorneys aren’t also above misbehaving — since they’re “unhampered by any special ethical responsibilities to be fair or to seek the truth, and they know for certain that their actions will never be reviewed as part of a claim of “misconduct.” But for a different look, see “The Legal Profession’s Failure to Discipline Unethical Prosecutors.”

All the same, it’s still headline news when prosecutors are atypically brought up on charges, including most recently that notorious Texas former prosecutor turned jurist, Judge Ken Anderson and the case of Michael Morton. Such was the notoriety of the Morton case that it became both springboard and linchpin to passage of the Michael Morton Act, the DA accountability legislation that Governor Rick Perry signed into law this past May

Prosecutorial misconduct.

The problem of misconduct is not as uncommon as you’d like to think. But it’s the lack of prosecutor accountability that appalls.

File:Himmelsstürmer staunen.JPGUnaccountable? How about a New York Times story about New York prosecutors also reporting that “In California, ‘prosecutors continue to engage in misconduct, sometimes multiple times, almost always without consequence,’ according to a study by the Northern California Innocence Project and Santa Clara University School of Law. In some 600 cases in which courts found there had been prosecutorial misconduct, the study found, only six times did the State Bar discipline the prosecutor.”2

Or take, for example, an investigation by ProPublica, an independent investigative news organization, that found 30 cases in New York over the past 10 years where convictions had been overturned because of prosecutorial misconduct — but where only once was a prosecutor subject to disbarment, censure or suspension. Also see Out of Order When Prosecutors Cross the Line.”

boy in coat and hat sticking tongue outIndeed, in April of this year, came news that Del Norte County, California District Attorney Jon Michael Alexander reportedly became the state’s first sitting prosecutor to face disciplinary charges. See the Opinion.

But at least here in Arizona, any proposed changes to the ethical status quo governing prosecutors are according to some prosecutors, “a solution in need of a problem.” Which reminds me of course of what Ted Turner used to say, “If I only had a little humility, I’d be perfect.”

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[1] For almost two years now, the Arizona Supreme Court has been weighing a proposal to amend Rule 42, ER 3.8, Rules of the Arizona Supreme Court, that would further clarify prosecutorial obligations concerning when they know of new evidence establishing a reasonable likelihood that a convicted defendant did not commit the offense and to examine the circumstances when a prosecutor has a duty to disclose, a duty to investigate, and a duty to do something to remedy the conviction of an innocent person. Generally, the prosecutorial bar is opposed to any changes. See, for instance, Prosecution Ethics: A Post-Conviction Duty Pro-Con – Lawyers

[2] Also see “Prosecutors Shouldn’t Be Hiding Evidence From Defendants …” and “Tainted Trials, Stolen Justice: Study reveals questionable conduct by attorneys” and “Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases.”

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Photo Credits:”surprise,” by Mary at Flickr via Creative Commons-license requiring attribution; “ham sandwich,” by Fancy steve via Wikimedia Commons under  the Creative Commons Attribution-Share Alike 3.0 Unported license;”disgusting,” by John Lambert Pearson at Flickr via Creative Commons-license requiring attribution; Dimanche au musee by Honoré Daumier at Wikimedia Commons, public domain; Man with short hair and gown tied at neck by Wenceslaus Hollar at Wikimedia Commons, public domain; A postcard with the public domain “me worry?” face that later inspired Mad magazine‘s Alfred E. Neuman, author unknown, Wikipedia Commons, public domain;Taco Bell Worker Licking Shells, via Facebook; Freilandtheater Käthe und Helene by Stefan Doering at Wikimedia Commons, public domain.

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