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Author’s note: There’s a lot of legal inside baseball in this story. But if you’re tempted to think it is not important, consider this in the context of why outsiders are now leading in the Republican Presidential race. It is not just Washington that people are mad at.
The criminal justice system in America is not perfect. But, when everybody involved does their jobs properly, it is certainly better than the star chambers in countries where many of our ancestors came from.
To work properly, it takes judges who limit themselves to calling balls and strikes, prosecutors who seek justice as opposed to a win at all costs, and defense attorneys who zealously represent their clients.
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With that in mind, picture this exact situation:
You come home on a Friday afternoon to your third floor apartment, look out on your balcony and see your locked storage unit door standing open with containers moved and opened. Nothing appears to be missing, but you’ve been violated.
You call the apartment manager’s office, and the response is a collective shrug. There are painters on the premises. They do, however, give you the number of the painting company. You file a police report online, and you call the office of the painting company where the daughter of the owner tells you that the painters will be back but does not offer to investigate your complaint. You tell her to keep her people out of your leased property.
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The next morning, as you are preparing to go to the gun range to shoot your brand new Glock .45 for the first time, you look out on your third story balcony just in time to see a man coming over the balcony. He could be a painter; he could also be a home invader. Since your pregnant wife and 2 ½ year old son are in the apartment, you grab your weapon, holster it, grab a pair of handcuffs which you carry in your work as a security guard, step out on the balcony and find that the man does not speak English. Deciding that prudence dictates a protective course of action, you effectuate a citizen’s arrest and call the police. The gun never leaves your holster, and it takes between 15 and 20 minutes for the police to arrive.
The police arrest you.
You are charged with two felonies: assault with a deadly weapon and false imprisonment with a deadly weapon.
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That is the story of the state of Nevada vs. James David Norrell.
Last March, we wrote about the preliminary hearing, observing that Norrell was bound over by Judge Patricia Lynch, who practically slept through that hearing.
Norrell’s luck with the justice system improved only marginally in Judge Lynne Simons’ District courtroom.
In late May, Simons heard a writ of habeas corpus filed by Byron Bergeron, Norrell’s defense counsel, seeking to overturn the result of the Lynch hearing in March. Simons denied Bergeron’s motion, basing her decision on her presumption that the state’s burden for binding over a defendant is only minimal.
It was a portent of things to come.
The trial started on September 28 with jury selection. It took a half a day, and the jury seemed like a very smart group of 12 people (plus two alternates) who you could have found in a Walmart parking lot. Regular, everyday folks, many of whom said that they were honored or happy to be there. That’ll be important as this story goes on because the jurors did their job correctly.
Opening statements came Monday afternoon with the state, in the form of brand new Assistant District Attorney Sean Alexander, presenting its theory that Norrell knew the painter was coming and lay in wait, ostensibly because he wanted to make some kind of a statement.
Bergeron’s co-counsel, John Malone, presented two theories for the defense. One, that it was a legitimate citizen’s arrest under the Nevada Revised Statutes, and two, that it was legitimate self- defense.
Nevada has a statute which reads:
A private person may arrest another:
1. For a public offense committed or attempted in the person’s presence.
2. When the person arrested has committed a felony, although not in the person’s presence.
3. When a felony has been in fact committed, and the private person has reasonable cause for believing the person arrested to have committed it.
It is NRS 171.126, and it has been on the books for many years in its current form. In fact, in 2009 in Las Vegas, the police department actually asked a restaurant owner to make such an arrest in their presence since they did not see the public offense and the restaurant owner did.
Self-defense is obvious since it is a third floor apartment, the man did not knock on the door (but, in fact, came over the balcony), and the lease called for 24 hours notice before such intrusions could occur. Except for some evidence, apparently fabricated a year after the fact, that 24 hour notice was not given.
After the opening statements came the witness testimony.
ADA Alexander presented testimony from the arresting officer, Jorge Aparicio; the owner of the painting company, Dan Viola; his daughter Ciara Viola; the painter who came over the balcony, Celestino Maldonado; and the property manager, Vikki Gutierrez.
To say the least, with the exception of Aparicio, it was a collection of people protecting their own interests. Maldonado, through a court interpreter, testified at variance to his sworn testimony in the preliminary that he was at work by 8 am, even though he had previously testified in the preliminary hearing that he, as a supervisor, didn’t show up until 8:30—presumably trying to tighten up the timeline. Defense counsel was also ordered not to inquire into his immigration status. He also testified that he was confronted with a gun pointed at him and that it happened when he had one foot on the balcony and one foot on the ladder, even though the balcony has a four-and-a-half foot railing which would make that virtually impossible.
Ms. Viola testified that she told Norrell during the previous afternoon’s phone call that the painters would be back.
Gutierrez testified that she had given Norrell the requisite notice, although she could not explain how it came to be that his apartment number was written over the exact apartment number of a defense witness who happened to come down to the office with Norrell and also asked for a copy of the notice.
The jurors visibly reacted to Gutierrez’s attitude the same way I did. I would rather be homeless than rent from that woman; and from the visible reaction of many jurors, they seemed to agree.
Officer Aparicio testified that he did not take a witness statement from Norrell, that he did not search Maldonado and that, in essence, he made up his mind that Maldonado was the “victim” without talking to Norrell–and in spite of the fact that the incident took place in a third floor apartment belonging to Norrell. He also testified that he did not talk to Norrell’s then-pregnant wife, who was present in the apartment.
The state’s witnesses were all excused, and the defense presented three witnesses: Norrell’s wife, Melanie; a neighbor, Amanda Sawyer; and Norrell himself.
It was at that point that Judge Simons lost control of her courtroom.
ADA Alexander decided to call both Gutierrez and Officer Aparicio as rebuttal witnesses. The problem was that both sides had excused them, and the ADA was able to coach them to tailor their testimony–which they would not have been able to do had they not been excused because the witness exclusion rule was in effect, precisely to stop that sort of thing.
Despite all that, the Judge allowed the testimony.
Then it came time for jury instructions.
Notably, the argument was mostly over an instruction detailing the Nevada law regarding citizen’s arrest.
Needless to say, the ADA did not want that instruction given, and the Judge agreed.
Irrespective of the fact that Nevada case law says the judge must instruct the jury as to the theory of the defense case, Judge Simons refused to allow that instruction. Perhaps she disagrees with the law, but she substituted her judgment for that of the state legislature which actually passed that law.
It got even worse when, during jury deliberations, the jurors ASKED for the law and she refused, again, to instruct them on the law.
The closing was predictable. ADA Alexander hammered his damaged case and asked the jury to look at who had motive to lie. Bergeron pointed out to the jury that every one of the prosecution witnesses, except the police officer, had a financial motive to lie because they were protecting their jobs, their business and the apartment complex from the wrath of the Federal government which subsidized those apartments. Bergeron also suggested to the jury that they should consider Norrell’s actions in the light of their own homes.
After a day and a half of deliberations, the jury came back without a verdict.
To sum up: a week long trial, a judge way off her game, and a hung jury.
That’s what happens when the system goes off the rails.
It usually takes a judge a few terms on the bench before he or she develops a case of what lawyers and journalists call ‘black robe fever.’ Simons has been on the bench for a hair over nine months, and she already has symptoms. She couched her bad calls from the bench as her “broad judicial discretion,” but those of us who regularly follow decisions of the Nevada Supreme Court know that this case would likely have been reversed promptly had there been a guilty verdict.
Judge Simons seems to have forgotten that in a civil trial, people are usually arguing about money; but in this case, the state charged a young man who was defending his family with two felonies that could have put him in prison for 11 years.
Because they could.
The District Attorney ought to think twice before he decides to retry this case. He has already wasted a huge amount of the taxpayers’ resources because one of those taxpayers made a decision that he would rather be tried by 12 than carried by six.
Bergeron says that he is pondering whether a decision to retry could be met with an immediate motion to dismiss the charges with prejudice since he believes the judicial error in this case may have created a double jeopardy situation.
Besides, if you are DA Chris Hicks, elected with no opposition in 2014, how many times do you want to tell your constituents that they have no right to defend their families and property in their own homes before the next election in 2018?
The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by the owners of this website.