Any jerk with a law degree can become a judge and as a former judge, I’m living proof. There is no guarantee that a person elevated to the bench will be a good/wise/thoughtful/tempered judge, no matter his or her predictable proclamations to be all those things. In fact, some turn out to be the opposite. There is no amount of look-good-on-paperism that translates to decent jurist, though there certainly are criteria that provide a decent foundation to hedge the bet. There is no required training program, or apprenticeship, or even technical requirement prior to taking a seat on the District Court (felony criminal trial) bench other than being a lawyer with 10 years of active lawyer service, with two of the years in Nevada. (Of course, once elected, a judge does have to go through a “judicial college” where no one, to my understanding, has ever failed.)
There is no probation period, no grades or ranking. And yet, the moment the judicial robe is donned, the person becomes “your honor” and is assumed to be the right person for the seat, demanding full respect and capitulation from the advocates who appear in that judge’s courtroom. And in very Queen of Dragons/Breaker of Chains style, even if they start off with wooing to get people to love them, it all too typically turns to a fear-based vocation. Think Judge Dredd over Judge Reinhold.
In Nevada, there are two pathways to becoming a judge. A political appointment when a vacancy opens or a scheduled, popular election. The key word in that last sentence being “popular” as even the most learned voters may have difficulty finding out what they need to know (or even knowing what they need to know) about casting a thoughtful selection.
The Legislature has toyed with moving to variations on an appointment-based system to enhance the caliber of judges, but that has universally been met with a strong resistance both in the op-ed pages and out in the electorate. The theory being that the public vote will always act as a correction in the system far from politics and partisan-based selections. In other words, Nevadans want to keep the power in their hands, so they can throw the bums out. Yet, short of giant scandals usually unrelated to, ya know, being a good judge for the litigants, incumbents rarely draw opponents. And because lawyers (and business owners) who appear in front of judges are the primary source of campaign contributions, even when judges do draw an opponent, they rarely lose. And when they do lose, it’s usually not because the challenger is necessarily better than the sitting judge, but because they somehow are more “popular.”
How one judicial candidate wins or loses is rarely about who might be the best, most scholarly and measured person but more about who’s better looking on a poster. Or who has the sneakier campaign or campaign manager. Or who gets endorsements from people or groups who either don’t even appear in those courts or whose vested interest in having an ally on the bench is so obvious that their “endorsement” is plain sad. And yet, that’s our system until someone forms a neutral, accessible, and comprehensive database with objective criteria – and well, lol. We can’t even pass a bill in our state that stops judges from issuing bench warrants to arrest people who failed to pay a fine on a broken taillight, let alone create and fund some useable judicial database to help us select judges. Ahead of the criminal justice curve, we are not.
And yet, if anyone really wanted to quickly effectuate criminal justice reform they would do everything in their power to fund and fuel the election of brilliant, progressive individuals to judgeship in order remedy (and even alter) the rut of a bad status quo that has led to mass incarceration and the wild corruption of judicial abuse allowed to fester – sometimes for a judge’s entire career. A recent case is a good example but sadly, not an anomaly.
Judge Doug Smith had been on the bench for a long time. In real (non-courtroom) life, I like Doug and like most judges, knew him before he became a judge. Off the bench, he’s charming, smart, funny and a decent person. Excellent lunch companion. On the bench, he repeatedly has violated the constitutional rights of individuals and the sanctity of judicial proceedings in such a disturbing and well-documented way that he was finally called out. By a single Nevada Supreme Court justice (Justice James Hardesty) in a lone opinion in the capital case of Sitton v. State, after Doug Smith retired. Hardesty listed 16 incidents of violations of law in a footnote in which no other justice publicly concurred. This footnote didn’t mention other cases where Smith misconduct was found but didn’t warrant a reversal, nor the three public opinions issued by the Nevada Judicial Discipline Commission, which is supposed to be the watchdog on judges. “Supposed to be” being the operative phrase because, well, THREE PUBLIC OPINIONS!
The point here being that Judge Smith was a judge for more than 20 years and the scan of the above-referenced incidents goes back 20 years. During that time, Judge Smith never lost an election for District Court judge and sometimes didn’t draw an opponent. Why didn’t the Judicial Discipline Commission at some point take umbrage and remove Judge Smith from the bench based on all the reversals? For if they had taken this initiative, and set a precedent, there are many judges (many of whom have received public reprimands) who would also have been bounced a dozen or so reversals ago for violating rules or repeatedly abusing their discretion. So much for a watchdog.
Indeed, if the justices of the Nevada Supreme Court were to start keeping stats on egregious misconduct leading to reversals, there would not only be a whole lot more footnotes but also maybe something more for the voters to hang on to. Or we could just wait for the bad judges to retire, as we do now.
Hmm. So what’s the answer?
One tactic that I’ve started to enlist for myself is to make footnotes in my own criminal case litigation that mix and match higher court findings of constitutional violations and judicial reprimands in efforts to recuse judges based on their records. In one recent case, I listed what I found to be over 25 documented cases of judicial error cited by the higher court, 17 of which required a reversal — and one public reprimand. This was not Judge Smith, but another judge on the same District Court, who, like Judge Smith, has been elected time and time again, often without an opponent. To date, the Nevada Judicial Discipline Commission has done nothing to evaluate this judge’s ability to remain on the bench. But at least I’m documenting it with the Nevada Supreme Court with hopes that it will lead to some further analysis. I’m not sure if other attorneys do the same because it’s risky. As the great jurist Morrissey once pointed out, sometimes lonely high court judges bear grudges.
Does all this mean an appointed judge system would be better?
Remember that case of Sitton v. State I mentioned, where Judge Smith got a foot-noted smacker from Justice Hardesty? Well, the thing about that case is that all the justices on the opinion agreed that Judge Smith made an error in allowing the case (which involved a co-defendant) to remain a two-person case, as opposed to giving each defendant a separate trial as the law requires. Also, for allowing the admission of the co-defendant’s statement without constitutionally protected safeguards in place. Judge Smith took the heat, but who decided to try and keep those co-defendants together in the first place, fought against the severance of the co-defendants, and offered a confession in a format that caused all the problems? The prosecutor, of course. And who is that prosecutor? Meet newly appointed Judge Jacqueline Bluth, who listed Sitton on her short-list of cases she found to be most significant to her on her application for the job.
I’m wary of career prosecutors who failed to exhibit the sort of restraint in their prosecutorial lives commensurate with the vast power with which they were vested. There are of course plenty of examples of good prosecutors who made great judges, but sadly Nevada has more than a few troubled prosecutors who were time and again found to have engaged in misconduct before the election and who continued to perform poorly after the voters put the person on the bench.
Take, for example, Judge William Kephart, whose long hit parade of shenanigans as a deputy D.A. was featured in Vanity Fair and included choking a defendant on the stand and withholding evidence of a man’s innocence that wasn’t corrected until after the man had served over two decades in prison. His D.A. partner on the latter also became a District Court judge. On the bench, Kephart has been reversed at least five times in the last few years in criminal cases and has received one public reprimand from the Judicial Discipline Commission.
Which requires us to return to the question: How good is the screening for appointed judges? So far, Democratic Gov. Sisolak has had the chance to appoint two Clark County District Court judges and he decided to appoint two career prosecutors, both of whom only had 12 years of lawyer experience, and one of whom had only been a member of the Nevada Bar for four years with no Nevada state court experience (Cristina Silva). Perhaps it was for their intelligence and affable personalities. Having worked with both, I can say both are blessed in these categories with abundance.
The thing I want to see, however, in the application of a prosecutor for a judgeship, is a statement appreciating their unique power to charge (or over-charge as the case may be) and negotiate cases in a manner which is reasoned, as well as operate in a way that functions within acceptable measures of justice which, you know, won’t get reversed. Maybe even acknowledge a mistake or regret and say what was done to correct it.
Having reviewed their publicly available applications, Gov. Sisolak’s unexplained “confidence” touted in the press releases from his office calls for a little more detail. The Judicial Selection Committee (which advances three names to the governor from all the applicants) rarely dives deep into the applications or the answers given in making their assessments — and that’s a lost opportunity so they might want to put out some detail, too. Unlike federal judicial appointment committees, the Nevada Judicial Selection Committee doesn’t call all the lawyers the applicants have listed on their applications — the ones involved on both sides of their most important cases. A more transparent system of the ultimate selection process would be useful. And while I could certainly go through each winning application and find what I’d consider to be areas worth further inquiry (and I have), it’s a little too inside baseball.
Instead, I simply remain cautiously hopeful that both recent appointments will be good judges despite their modest time as lawyers with mostly singular focused careers. As stated, both are very smart and will likely be prepared in handling their caseload. Moreover, Judge Silva touted being raised as a Latina in a US-Mexico border town and what she saw from that upbringing as well as her participation in the creation of a federal drug diversion program as some of her unique qualifications, and that’s notable.
On the other hand, Judge Bluth’s application listed a strange selection of the five cases that she found most significant to her. Two of the five (including Sitton, mentioned above) have been reversed based on erroneous rulings by the judges — but those rulings would have never have arisen had the prosecutor (Bluth) not forced the underlying issues. A third one is currently on appeal challenging Bluth’s decision to engage in overcharging the defendant. And a fourth one was self-offered as an example of Bluth’s compassion, wherein she recommended probation for a drug-addicted woman, who was nonetheless required by prosecutor-Bluth to plead guilty to three felonies for non-violent offenses based on a single incident with no victims. There were other hoops attached to the plea bargain, too, but since the Guilty Plea Agreement was filed under seal (a rarity), one can only speculate what else the compassionate D.A. also required of her defendant.
In other words, in her own application, Bluth was self-congratulatory for “fixing” what she created; for doing what, in a fair world, should have resulted in probation under any objective standard. A truly compassionate D.A, may not have required any felonies, let alone three. I just don’t see this case as reflective of having self-awareness of the power of the position and in fact the opposite – the view as “compassionate” of something which is rather fundamental for respecting the dignity of those in the system. Optimistically, Bluth will exhibit the capacity to take on her role as a judge with a greater depth of self-reflection.
Thus, of course, raising the questions: What exactly was the Judicial Selection Committee looking for (and finding) in the three applicants per bench opening that were given to Sisolak; and what was Democrat Steve Sisolak’s thought-process in tapping into young, career prosecutors to fill the shoes of seasoned, well-regarded judges? Was either decision in line with the type of restraint and reforms necessary to reduce mass incarceration, the tendency to hold prosecutors who overreach in check, to throw out weak cases or reduce the number of appealable issues in cases like their predecessors? On paper, the answer is no.
Of course, only time will tell how good the picks were and, again, they may have been great selections. Since they are the judges now, we have to give them a chance. But come Election Day for both these judges, how will the voters even know how it worked out?
It is a reasoned belief that the quickest way to get to a more fair, equitable and reformed criminal justice system is to put judges in place who get it. And by “it” I mean ones who understand deeply that every defendant had a life journey to get where he or she got with societal factors in place which may have influenced his or her decisions; who understands addictions, mental health status and the challenges in place to succeed; who recognizes inequities built into the system which, unchecked, allow for punishments to far exceed humane practices and who aren’t so overwhelmed or swayed by public opinion or even those victims most impacted by the crime that it clouds the ability to look at the best in people and not look for the worst. But more importantly, judges who won’t, at least, actively fight the intent of criminal justice reform, because judges are always in a position to thwart efforts for reform by using their discretion in an oppressive manner.
In the next few weeks, the governor will receive another set of names, this time to replace retired Judge Doug Smith. It will be interesting to see whether a notion crosses his mind to seek out the one best situated to make a change, or if the prosecutor option will be his fascinating default. It will also be interesting to see in the next election cycle — where so many judges will be up for re-election — how we will ever be able to know the just from the just-need-them-to-retire?
Dayvid Figler is a private criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.