Published on:

Judge’s Impartiality Can Impede Sentence Hearing

In a recent Nevada criminal case for drug possession, the presiding judge, Clark County District Court Judge Douglas Herndon, recused himself from the case citing his unhappiness with the plea deal struck between the state attorney general’s office and defense attorney. Many have questioned whether Judge Herndon not only was correct in his recusal, but whether he should have recused himself from the case altogether.

The Nevada Code of Judicial Conduct Rule 2.11 outlines when a judge is disqualified or should recuse themselves from adjudicating a matter. Under Rule 2.11 a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned. A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed by either the prosecution or defense.

While there is no rule that dictates whether the disqualification or recusal should occur before, during, or after the trial, it is widely accepted that any disqualification or recusal should occur when the impartiality occurs. When the disqualification or recusal is for impartiality, the reason for the impartiality must be disclosed on record.

In the matter on which he recused himself, Judge Herndon was hearing a case where the defendant was a former colleague. During a routine traffic stop in March, cocaine was found in the car of now former Deputy District Attorney David Schubert. As the former Chief Deputy District Attorney in charge of the Special Victims Unit, Judge Herndon and Schubert worked at the district attorney’s office during the same time. At the time the case was assigned, Judge Herndon did not feel an obligation to recuse himself because though he and Schubert were colleagues; their relationship was one of a professional, not personal, nature. Neither the state attorney general’s office nor Schubert’s attorney requested a recusal.

After his arrest Schubert resigned from the district attorney’s office. The state attorney general’s office, which took over the case because of the conflict between Schubert and the district attorney’s office, then struck a deal for Schubert to plead guilty to felony cocaine possession charges, with a sentence of probation. During the sentence hearing, Judge Herndon refused to accept the plea deal noting that Schubert was “getting a better deal than people you’ve prosecuted.” That as a former prosecutor, his feelings for the sentence made it probably made it impossible for him to hand down the “too lenient” sentence because “I don’t think that’s just and proper.” Judge Herndon also stated that as a prosecutor himself, Schubert, should have held himself to “a higher sense of responsibility.”

Both the state attorney general’s office and defense attorney felt the sentence was fair for a first time offender.

Now that Judge Herndon has recused himself, the case will be put back on the district court’s master calendar, and then assigned to a new judge for a new sentence hearing.

The commentary is for educational and commentary purposes only. If you or someone you know has been arrested for criminal charges, and would like to be represented by a Nevada attorney, contact our office for a free confidential case review and receive a response within hours. Call Toll Free 866-414-0400.