Nevada DA One Man Bill Of Rights Wrecking Crew?

December 11, 2009

I never heard of Winnemucca, Nevada before this morning, nor had I heard of its District Attorney, one Russell Smith, but a little article on Lawyers and piqued my interest.  Upon further investigation, it seems that Mr. Smith should be better known, if the allegations against him are true, since he is a textbook example of how not to behave as a prosecutor.  He could also be used as a law school case study on how to go about violating the Bill of Rights.

First of all, Mr. Smith is accused of violating Martin Fonseca’s constitutional rights during a 2008 attempted murder prosecution.  Here are the facts of that case, as reported by the Silver Pinyon Journal:

“Fonseca was arrested in March 2008 for stabbing his son-in-law. The son-in-law and various family members told authorities Fonseca approached his son-in-law in the common area of their apartment complex and stabbed him.

Evidence later showed the son-in-law broke down the door of Fonseca’s apartment and approached him aggressively. According to court documents, Fonseca warned his son-in-law he had a knife and he (the son-in-law) shouldn’t come any closer. When the son-in-law continued advancing he was stabbed by Fonseca.

The family members were involved in a dispute with each other prior to the stabbing.”

Mr. Smith is alleged to have discovered about a week after the stabbing that the eyewitnesses had lied about the events leading up to the altercation. This new information supported Mr. Fonseca’s version of the events. Mr. Smith failed to turn this evidence over to the defense. Mr. Smith also failed to turn over to the defense photos of the broken door to the apartment, evidence that also supported Mr. Fanseca’s self defense claim.

Both of these omissions are major constitutional no-no’s.  The landmark Supreme Court case Brady v. Maryland, decided in 1963, spelled out a prosecutor’s duty to turn over “exculpatory evidence” to a defendant. Exculpatory evidence is defined as “evidence which may justify or excuse an accused defendant’s actions, and which will tend to show the defendant is not guilty or has no criminal intent.”

The court held that withholding evidence violates due process “where the evidence is material either to guilt or to punishment.”  If true, Mr. Smith violated Mr. Fanseca’s due process rights under the Fifth and Fourteenth Amendment.

Mr. Fanseca is also alleging that his Fourth Amendment rights were violated, as he was subject to an “unreasonable seizure.”  The reason? Because he wound up spending a year in jail. Sounds like an unreasonable seizure to me, especially considering that he did nothing wrong, and the DA knew it.

Well, as it turns out this isn’t the first time Mr. Smith is accused of violating someone’s constitutional rights.  In March of this year he was also accused in a lawsuit brought by one Michelle Robinson, and Ms. Robinson wasn’t even a criminal defendant. In fact, she was Mr. Smith’s employee.  Read this post for the details of her lawsuit. In essence, Ms. Robinson claims that she was fired from her position as a victim’s advocate by Mr. Smith for speaking out about care given to rape victims.  She is accusing Mr. Smith of violating her first amendment free speech rights, freedom of religion rights, and fourteenth amendment due process rights.

The lawsuit alleges that in her role as advocate, she publicly voiced objections to the policy of forcing sexual abuse victims to travel 160 miles to have rape kit evidence collected.  This brought a good deal of negative publicity to the office. She claims she was fired by Mr. Smith in retaliation for her public comments.

After Smith fired her, she found employment with the school district. Mr. Smith telephoned school officials to discuss Ms. Robinson. He persuaded them that they should terminate her employment for a number of reasons, including the fact that she is a practicing Wiccan-hence the freedom of religion claim.

I don’t know whether all of these nasty things being said about Mr. Smith are true. That’s for a jury to decide.  If so, he abided the old adage: in for a dime, in for a dollar.

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