Friday, April 27, 2007 | 7:17 a.m.
Former Nevada Supreme Court Justice Nancy Becker is under fire from defense lawyers claiming she may have committed ethics violations during her recent transition to the Clark County District Attorney's Office.
In papers filed this month with the Supreme Court, lawyers from the Special Public Defender's Office say that late last year, Becker ruled on several cases involving the district attorney's office while she was negotiating with that office for a high-ranking, high-paying job.
In motions to the Supreme Court to rehear three murder case appeals, the defender's office says Becker should have recused herself from ruling on th ose cases, and that by not doing so she may have violated the part of the Nevada Code of Judicial Conduct that says judges must disqualify themselves from matters "in which the judge's impartiality might reasonably be questioned."
In one of the appeals motions, in fact, Deputy Special Public Defender Randall Pike argued that facts had come to light that warrant a "confidential investigation by either the attorney general's office, the Nevada Commission on Judicial Discipline, and/or the Supreme Court regarding the actions of departing Justice Nancy Becker and her subsequent employment with the district attorney's office."
On Nov. 7 Becker, who had served as a Supreme Court justice since 1998, lost her reelection bid to District Judge Nancy Saitta.
District Attorney David Roger said Becker first called him later that month or in early December to discuss possibly working for his office. Roger said Becker was weighing at least one other offer .
The Supreme Court issued the three rulings in question - in the cases of Donte Johnson, Marlo Thomas and Charles Summers - on Dec. 28, three days before Becker's term on the court expired.
In each case the murderer had appealed his sentence, saying his rights had been violated when prosecutors introduced hearsay evidence during his sentencing hearing without allowing the defense to confront the witness.
In each case Becker sided with the majority in 4-3 rulings, which favored the district attorney's argument that no violation had occurred.
The three other justices signed on to a separate, concurring opinion. Although all the justices agreed that none of the men deserved to have his sentence reversed, the three others argued that future murder defendants should have the right to argue that such hearsay evidence shouldn't be allowed.
News reports surfaced in the first week in January that Becker was in discussions to work for Roger's office. One sticking point was money: Becker and Roger agreed that Becker needed an exemption from Clark County to earn a salary closer to what she made on the court, $140,000.
She gained the exemption from the county and started her job as a chief deputy in the office's appellate section on Jan. 16. Assistant Clark County Manager Elizabeth Quillin said Becker was approved by the county to earn $120,000 annually.
Roger said he and Becker did not discuss any of Becker's pending Supreme Court cases while they were discussing a possible job for her. As to whether Becker should have recused herself from any cases involving his office while they were in discussions, he said, "I think that's an issue for Justice Becker to address."
Becker declined to comment on the cases. But in a response to the special public defender's motion in the Thomas case, Chief Deputy District Attorney Steve Owens noted that oral arguments in that case took place in June, six months before the Dec. 28 decision was handed down.
In other words, said Owens, chief of the office's Capital Case Unit for death penalty cases, the real vote-taking and decisions in all three cases may have been made months before the election, making any talk about a conflict of interest moot.
Owens added that because he wasn't an expert on court procedures, he couldn't say for sure when the actual decisions were made.
The special public defender "can say all sorts of crazy things," Owens said, "but that doesn't mean there's a story there."
Special Public Defender David Schieck strongly disagreed. "Obviously," he said, "there's an appearance of impropriety, and an appearance of a huge conflict."
Allen Lichtenstein, general counsel for the American Civil Liberties Union of Nevada, concurred.
"There's no basis to say there was collusion, but there clearly appears to be a conflict of interest," Lichtenstein said. "This doesn't help people to have faith in judicial independence, which is unfortunate."
Becker also was criticized recently by a private defense lawyer regarding the cases she has worked on since becoming a prosecutor.
In February Las Vegas attorney JoNell Thomas filed a motion with the Supreme Court arguing that Becker should have disqualified herself from any role in a case involving Thomas' client, William Bickom.
Becker was one of three justices who in 2006 signed an order affirming Bickom's conviction. Then as a prosecutor, Becker earlier this year filed a motion on the same case.
Thomas has argued that Becker should have recused herself, and that her client's rights were violated because she did not. As a justice, Thomas said , Becker had access to information about the case not afforded her.
Referring to the Nevada Rules of Professional Conduct, Thomas said "Becker was precluded from representing the state in connection with Mr. Bickom's case because she 'personally and substantially' participated in this case while a Nevada Supreme Court justice."
Becker responded in court papers that there are certain types of cases from which she has agreed to recuse herself as a prosecutor, including cases in which she had participated as a justice.
But she said she does not believe she should be screened from handling appeals cases stemming from post-conviction proceedings like Bickom's. Becker added that she had participated in thousands of appeals cases and had no recollection of Bickom's case.
The Supreme Court has not ruled on Thomas' or the special public defender's motions.
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