BUT WILL THE JUDICIARY CONTINUE TO “PROTECT ITS OWN?”
by Sharon Rondeau
(Jul. 11, 2012) — In June of last year, The Post & Email reported on a case filed in the state of Nevada in which two plaintiffs were denied a grand jury hearing because the county in which the charges were brought had not convened one in more than three decades.
Plaintiff Tim Fasano and his wife had been victims of a shooting and had found evidence that the judge presiding over both the criminal trial and ensuing civil suit had been bribed in the way of a campaign contribution to allow one of the criminal defendants to be exonerated.
Tim Fasano and his co-plaintiff at the time, Wes McWethy, had requested that a grand jury be empaneled to review of evidence relating to campaign contributions made by attorneys to Judge David A. Huff in Churchill County, NV. At the time, it had been 35 years since a grand jury was convened by the county and the court clerks were not familiar with its function.
The plaintiffs’ request for a grand jury hearing could not be reviewed for Huff, as he was named as a defendant, and was therefore given to Judge Leon Aberasturi, who refused the plaintiffs’ request. Fasano then appealed to the Nevada Supreme Court. There is no appellate court in Nevada, and cases on appeal are referred to the state Supreme Court. A proposal for the creation of an appellate court was defeated in 2010.
A deputy district attorney had indicated to Fasano that he believed there was wrongdoing on Huff’s part but that state law mandated that his office represent any judge against whom a civil or criminal complaint was brought.
A member of the Nevada Supreme Court dismissed Fasano’s case on the grounds that the plaintiffs “didn’t provide adequate evidence” against the judge being charged. Fasano then filed a criminal complaint pro se against Judges David Huff and Leon Aberasturi as well as four attorneys, charging them with “fraud, fraud on the court, racketeering, conspiracy to commit fraud” and other transgressions.
Earlier this year, judicial redistricting occurred in Nevada, creating ten districts. Aberasturi was relocated to what became the Third District, but Huff remained in Churchill County, which became the Tenth Judicial District.
Fasano’s complaint was assigned to a retired member of the Nevada Supreme Court. “Instead of bringing a pro tem judge, which is proper process, they brought in a retired supreme court justice to hear my case, Justice Rose,” Fasano said. After the criminal case was filed, all of the defendants asked that it be dismissed.
Fasano claimed that Rose “encouraged” the defendants to ask for a dismissal of the case, which was reportedly done on technicalities rather than on the merits. “Their grounds were really poor,” Fasano said. “If you’re going to make a valid argument, do it on the merits, not on procedural grounds. Their claim was that we did not cite a claim upon which relief could be granted, which was clearly erroneous, because I cited the statute in the complaint itself that would give rise to the complaint and provide for a means of recovery for damages.”
Justice Rose dismissed the complaint, after which Fasano appealed to the Nevada Supreme Court. Two appeals were filed this year: one in early March and the other in mid-April. “Justice Rose bifurcated all the orders, so when we got the orders back from the court on the dismissals, we decided to appeal. We filed the appeal, and then three of the Supreme Court justices decided to take it back, saying that there was still an open issue with the case, which was not true,” Fasano said. ” All of the orders of the court had been fulfilled, and the appellate system was just not notified of the final remaining order. On the first appeal, we asked for a rehearing.”
After Fasano filed his appeal in March, he said that “Suddenly, Judge Huff decided he wanted to retire.” According to a local news report, Huff had “been on leave for personal reasons since January” of that year. Shockingly, Fasano reported that Huff was found dead nine days later, although an official obituary stated that he died at Carson City Hospital. Another report stated that the location was “Carson City.” News reports differed on how long Huff might have been ill.
Fasano had filed for a motion for a rehearing after the dismissal. However, according to Nevada law, the person who assumes the position of a deceased defendant in public office, the “successor in interest,” becomes the defendant in the lawsuit. “They can’t rule on anything,” Fasano said, “until someone else fills Judge Huff’s position. There was no successor-in-interest named, and according to the state statute, the Rules of Appellate Procedure, the Nevada Rules of Civil Procedure, and the Nevada constitution, they couldn’t issue a ruling,” he said. A total of seven appeals were refiled with the Nevada Supreme Court. Several months ensued until, on July 5, 2012, Nevada Governor Brian Sandoval made an appointment to fill the vacancy left by Judge Huff’s passing.
For the appeal, a three-judge panel of the Nevada Supreme Court is expected to preside. As of this writing, no hearing date has been set.
Over the last few months, a case was advanced as a result of a federal grand jury indictment which appears to have had striking similarities to Fasano’s. Harvey Whittemore was an attorney and lobbyist who donated significant amounts of money to Nevada Supreme Court justices, U.S. Senator Harry Reid and other candidates for public office. The grand jury found evidence that Whittemore had been making political contributions using a “conduit to hide the identity of the true contributor.” Fasano stated that the contributions had improperly influenced the judiciary. In comparing his case to the Whittemore indictment, Fasano said, “I felt very vindicated. My argument had always been that what was done in the courtroom between Judge Huff and the attorneys and failing to disclose campaign contributions was against the law, and that it amounted to bribery. The same issue came up in the federal grand jury in Reno in Whittemore, and they indicted him. Five justices of the Nevada Supreme Court took contributions from Whittemore. Five out of seven is not a good number.”
Fasano wants the three-judge panel to “reverse the order of Justice Rose and remand it back to the Tenth Judicial District.” He plans to present the evidence originally given to Churchill County in the grand jury request and from which the Supreme Court received its information. “They have an extensive docketing package to review,” Fasano said.
Fasano stated that he believes his “deliberate” approach in exposing judicial corruption has been the right one. He said that a 54-page brief he filed in the case brought up the issue of treason against the U.S. Constitution. “We’ve gotten away from the Constitution,” Fasano said. “If we can return to it, maybe that charge will be considered more seriously. There are only two crimes actually mentioned in the Constitution: treason and perjury, lying and going against your country. You can’t get much simpler than that. Every other law, as far as I’m concerned, should be based on those two principles: telling the truth and not going against your own country. We’re seeing elected officials all over the place who are constantly doing things that are not in the best interest of our country.”
The Post & Email asked Fasano if he believed that grand juries might eventually be brought back to Churchill and other counties in Nevada, and he answered, “Yes, I do. I believe future judges will want grand juries, because they would make sure that a case which comes up before a judge is a valid one. We can’t trust government to police itself, but we can trust men and women of integrity. There are so many advantages to having a grand jury. I hope they people of Nevada are better off in the long run.”
The most important point of his case, Fasano explained, was that he and his wife were victimized by a violent crime and then victimized again by judicial corruption, for which he is seeking justice.
“The state judiciary has to fix the problem. I had said a couple of years ago that the problem was the judiciary. We are finding that there are more and more people who are starting to realize that the judges are operating out of the confines of law. They twist, contort, and manipulate the law for their own benefit and sometimes for their own financial gain. That is not what they are supposed to be doing,” Fasano said. “They swear to protect and defend the Constitution, yet they are bending and manipulating the very document they have sworn to defend.”
Fasano stated that he is “sure” he is having an impact on correcting the judicial malfeasance he has witnessed in Nevada. If he is unsuccessful with the Nevada Supreme Court, he intends to ask for an en banc hearing, then appeal to the Ninth Circuit Court of Appeals and, if necessary, the U.S. Supreme Court. He stated that the U.S. Supreme court “has already decided” the matter because of its opinion issued in 2009 in Caperton v. A.T. Massey Coal Co., which stated that a judge must recuse himself from a case if the “probability of bias” exists.
Fasano said he “wants to exhaust all of the possibilities at the state level” to resolve his case before going to the federal level. He believes that a grand jury made up of citizens from the county or district would provide objective oversight of public corruption.