D.A. Gammick intervenes in judgeship race

A little-noticed judgeship race erupted in anger last week as District Attorney Richard Gammick intervened in the race with a widely circulated email message attacking one of the contenders.

The candidates in the race are incumbent state district judge Robert Perry and his challenger, deputy district attorney Elliott Sattler.

Gammick’s message accused Perry of claiming that Gammick was supporting his campaign.

“I have heard repeatedly that you and your fiancée Patty Wade have been stating that I endorse you for re-election,” Gammick wrote. “I do not endorse your re-election as a District Judge nor will I. Your approach of giving repeat violent offenders probation, giving sex offenders, particularly with child victims, probation and reinstating a person convicted of possession of child pornography to probation is not acceptable. There also have been several cases where victims have been shot or stabbed and received probation from you. These are just a few examples where you have apparently been more concerned with the impact on the defendants than on the victims, which is in direct contradiction to the approach of this office.

“During a public interview, you stated that I did not prosecute you for drug violations due to a lack of evidence. That statement is misleading since I have in my possession reports from two separate laboratories stating you had cocaine metabolites in your system, which establishes the fact that you had ingested cocaine. What I was unable to prove was that you ingested the cocaine in Washoe County, which resulted in you not being prosecuted due to a lack of jurisdiction.”

The remainder of the 784-word message was in a similar vein.

Gammick sent the message to 200 of Reno’s most prominent people—Republican Party leaders, journalists, public officials and attorneys.

Stung by the ferocity of Gammick’s attack, Perry responded in a detailed message that is posted with this story online: “I understand and respect the job your office is charged to do and have a good working relationship with the majority of the office. I do not, however, and cannot favor the prosecutor, or any party, as I believe my opponent desires.”

Perry was appointed to the bench by Gov. Kenny Guinn on Jan. 18, 2005, over two other candidates, Julien Sourwine and John Springate, who were also nominated by the Nevada Judicial Selection Commission. In a lengthy interview with the News & Review before Gammick’s message was sent, Perry said nothing to indicate he had Gammick’s support. Indeed, far from suggesting Gammick support for Perry, some of Perry’s supporters have said they believe Gammick is behind the candidacy of his deputy, Sattler.

Until Gammick’s email intervention in the race, Perry and Sattler were fighting a bitter battle that, however, received little attention outside legal circles.

Sattler had a campaign newsletter, the “Sattler Sentinel,” inserted in the Reno Gazette-Journal. It faulted Perry’s handling of specific cases and also made an issue of Perry’s alleged substance abuse.

“Judge Perry has admitted that he sought treatment for substance abuse,” reads Sattler’s leaflet, a charge that drew criticism from substance abuse counselors who said people should be able to move beyond their mistakes, and from the governor who appointed Perry.

“People go through those kinds of trials and tribulations, and if they seek help I think that is to their credit. … If you went through something like that and you didn’t get treatment, that would be disqualifying,” said Guinn.

Perry willingly acknowledges an alcohol problem. Sources close to him say he has been in Alcoholics Anonymous for more than two decades. (He will not confirm this, apparently in keeping with the group’s confidentiality tenets.)

The Sattler leaflet also raises an incident 23 years ago when Perry was allegedly present with a group of lawyer friends and a white powder was sighted through a window by a passerby, resulting in a police investigation of those present. In the N&R interview, Perry said he joined the gathering about five minutes before police arrived and that he underwent drug testing that was inconclusive because of the effect of narcotic medication he received after spinal surgery. Gammick’s account of the incident is given in his email message.

The Judicial Selection Commission investigated Perry’s alcohol problem and did not find it disqualifying.

Also in his campaign publication, Sattler cites several specific cases that have come before Perry as a judge and second guesses his decisions in emotionally loaded terms—"Dangerous Defendant Set Free to Burlgarize Homes;” “Career Criminal Given More Probation;” “Who pays for the crimes in Judge Perry’s courtroom?”

“It would be very easy just to simply say, ‘Judge Perry’s soft on crime.’ If you were to say that, then people would say, ‘Well, give me specifics,’ “ Sattler said in an interview, explaining why he researched specific cases. And he used a number of cases to avoid the impression that he was citing some anomalous exception. Sattler said he has found 46 such cases, which Perry says represent about 1.5 percent of the 4,000-plus cases he has heard.

The RN&R chose one of Sattler’s cases at random and examined Sattler’s characterization of the facts to see if they fairly represent to the public what happened. Under the headline, “Judge Perry Sentences Woman to Probation After Stabbing Death,” Sattler recites some of the facts in the case of teenager Ana Padua, who pleaded guilty to voluntary manslaughter after stabbing a 35-year-old male acquaintance to death. In an interview, Sattler acknowledged he has no personal knowledge of the case and wrote his account describing the case from a Reno Gazette-Journal story. Sattler’s account reads in part:

“Although Padua apologized to the court and said she felt bad for the victim’s family, the prosecution brought to the court’s attention that Padua had said to an acquaintance that [victim Joseph Robb] ‘bled like a bitch.'”

Most of Sattler’s account was written that way, and it also says the RG-J “reported on Judge Perry’s inability to punish remorseless criminals that come before his court, even when they admit their guilt.” The RG-J account makes no such characterization.

However, by relying on the RG-J account, Sattler missed some important facts in the case, because the newspaper account was incomplete. It made no mention of an official pre-sentencing report on Padua that said she had been abused. (Her hair was clutched in the victim’s dead fingers.) The report also said that, in spite of a low-income background, Padua had never before been in trouble with the law. “If she is the monster and the predator that some would make her out to be, then she would have other things in [her record],” testified the officer who prepared the report. “She would have been arrested for other offenses.”

Neighbors testified that they lived in fear of what they called the “mad dog” victim, who had meth in his system at the time of the crime, and that they heard noises consistent with Padua being abused by Robb. Padua testified Robb was trying to force her into prostitution.

Limited examination of other cases among Sattler’s 46 shows similar incomplete characterization of the facts. In one case, he faults Perry for a sentence actually imposed by another judge.

Perry, as a sitting judge, is under greater restrictions on what he can say about individual cases, but after Sattler began circulating his material, Perry did strike back with a website and leaflet responding to his opponent, including a denunciation of Sattler by Gammick in the Reno Gazette-Journal because Sattler failed to ask for higher bail on a carjacking/assault suspect and a litany of cases. One of them involved Sattler dropping all but one charge against two men accused of setting fire to St. Mary’s Hospital and accepting a sentence of probation, after which one of the men was arrested while on probation for another crime.

“But I understand that we’re human beings, and that we don’t have crystal balls,” Perry said. “Sometimes we make a decision on the basis of what’s in front of us. We do what we honestly believe to be the right things—I’m talking about myself, I’m talking about my opponent—and it turns out we’re wrong. He’s released some people that have committed horrible crimes on minimal bail.”

Washoe Sheriff Mike Haley and other law enforcement officials spoke up for Perry, calling a “soft on crime” label ridiculous. Former district attorney Cal Dunlap, former police chief and sheriff Richard Kirkland and other law enforcement professionals wrote a statement after they examined Sattler’s 46 cases: “His opponent has listed certain specific cases that he claims show that Judge Perry is ‘soft on crime.’ … [We] conclude that the opponent’s claim is complete and utter nonsense.”

Whether the public will be able to sort out all the available information on Perry, Sattler, the 46 cases, and other elements is anyone’s guess. Compelling slogans like “soft on crime” can be more alluring to the public than complicated facts.

Gammick’s provocative email message is adding to that complicated mesh as it is forwarded from person to person around the valley.

Gammick’s email message to Perry:

Judge Perry:

During your campaign for re-election as a District Court Judge, several public comments have been made about me as the District Attorney and the District Attorney’s Office which need to be corrected. That is the purpose of this letter. I am also requesting that you confirm the accuracy of any other information you may wish to use in your campaign remembering that I am not your opponent.

I have heard repeatedly that you and your fiancée Patty Wade have been stating that I endorse you for re-election. As you are aware from our early conversations, that is not the case. Also, during that conversation, I stated that I would not oppose your campaign, but that did not give you carte blanche to make inaccurate statements or comments about me or the office. I do not endorse your re-election as a District Judge nor will I. Your approach of giving repeat violent offenders probation, giving sex offenders, particularly with child victims, probation and reinstating a person convicted of possession of child pornography to probation is not acceptable. There also have been several cases where victims have been shot or stabbed and received probation from you. These are just a few examples where you have apparently been more concerned with the impact on the defendants than on the victims, which is in direct contradiction to the approach of this office.

During a public interview you stated that I did not prosecute you for drug violations due to a lack of evidence. That statement is misleading since I have in my possession reports from two separate laboratories stating you had cocaine metabolites in your system, which establishes the fact that you had ingested cocaine. What I was unable to prove was that you ingested the cocaine in Washoe County which resulted in you not being prosecuted due to a lack of jurisdiction.

After stating “Well I’m not real familiar with the whole facts of that case (Darren Mack)” and while it was still on appeal to the Nevada Supreme Court, you stated that I had struck a deal with the authorities in Mexico not to seek the death penalty. Even when the interview host attempted to correct you, you still stuck by this misstatement. The fact is that the authorities in Mexico were never contacted; there was never a discussion with them about the death penalty or any other facet of this case. As stated by me and the prosecutors from Clark County made the decision not to seek the death penalty after accepting and staffing the case.

Later in the same interview you stated, “in fact, Dick Gammick was talking about how they were going to quit prosecuting DUI’s and misdemeanor cases because they didn’t have the money to do that.” In fact, what I said every time I addressed this subject is that if I was told to cut my budget by the original amount, I would have to lay off attorneys which would result in our not being able to prosecute misdemeanors, with the exception of DUI’s and domestic violence. I went on to explain that we would feel this out and that I was not going to forego felonies for misdemeanors.

More recently, on your web site you have made other incorrect claims concerning this office and the handling of a juvenile school shooting case. As with all juvenile cases, there are requirements of confidentiality which restricts the information that may be released to the public, a set of laws that, as a Judge, you should be well aware of. There were other factors considered in this particular case that cannot and will not be publicly discussed which lead to our decision not to seek adult certification, which must be approved by a Judge. The decisions to release him to the custody of his parents and the ultimate sentence of probation he received were made by judicial officers of the Family Court, not by anyone in this office. In fact, after we argued for incarceration, I publicly criticized these decisions.

I have never been in the position to feel obligated to write this type of letter to a sitting District Court Judge and hope the necessity never comes up again. This can be prevented in the future if you ensure the accuracy of your statements before making them public. If that would have happened in this instance, I would not be writing this letter. Throughout my career I have never had any difficulty accepting criticism for errors or mistakes. On the other hand, I do take issue with the items indicated above and hope that you will take appropriate steps to correct them as well as cease and desist from making any others.

Richard A. Gammick

Washoe County District Attorney

(775) 328-3220

Perry’s email message to Gammick:
Dear Dick,

I was disappointed, but not too surprised by the extremely negative e-mail which you sent to a large number of the most influential people in our area, including many of my friends, on Friday, September 19, 2008. Many of my friends in our close community have been telling me for many months that my opponent, who’s your employee, and his lobbyist were planning to launch a personal attack to try to generate free press coverage by bringing up an incident in which you and I were involved nearly a quarter of a century ago.

I was, however, somewhat troubled by your e-mail because of your promise not to actively oppose me and because I was recently given a letter you wrote to another candidate on July 26, 2006 wherein you said:

“I have never engaged in, nor do I support your engaging in, negative campaigning. Please immediately cease and desist from using my name in any way relating to negative campaigning. This includes negative attacks on your opponent and/or any organization that may be supporting him.”

You knew, of course, that my opponent was the one who first wrote about the quarter of a century old drug test, and that I would have to respond to it because of how the incident has been misrepresented.

I understand that when a candidate lacks significant experience and qualifications, as is the case with my opponent and your employee, that his camp unfortunately often resorts to personal attacks. I do not want to be baited into giving undeserved and unnecessary attention to the desperate attempt to generate free publicity by defaming me and hurting my family. I will, however, take advantage of this opportunity to respond this one time.

1. YOUR ENDORSEMENT OF MY RE-ELECTION

Since I know you support my opponent, which he has confirmed countless times publicly for months, I’m amazed you would think I, or my fiancée, would ever claim you endorsed me. We never have, nor would we.

2. THE CLAIM I’M SOFT ON CRIME, PARTICULARLY SEX OFFENDERS

This is the claim my opponent has falsely made for many months. I have refuted it on my website: JudgePerry.com, and encourage everyone who wants to know the truth to check it out. On my website, I show for example that the Sigala case, where my opponent falsely claims I allowed a child molester to go on probation, was actually a statutory rape case where Judge Hardesty originally put him on probation at the specific request of your office. With regard to the child pornography case where you said I gave a defendant probation, I do not know the specific case to which you refer, so I can’t respond. I do know that your office has agreed to probation in cases where grown men possessed and were circulating photographs on the internet of three and four year old girls having every type of sex, including oral sex with adult men. See, for example, State v. Eldridge, Case #CR08-0708, where, in 2008, my opponent stipulated to probation for the 60 year old man who possessed and circulated those photos.

I also note that you have never personally sat in my courtroom to evaluate my performance in the last 3.5 years. On March 21, 2008, I wrote you and asked for information your office had about any problems with my decisions. You have never responded. (letter attached).

I’m not trying to criticize you or your office, I’m just pointing out what we both know—every case must be evaluated on its own facts by the prosecutors and judges who are most familiar, not by hindsight.

3. DRUG TEST

I was particularly amazed when my opponent published and circulated a story about a party I attended very briefly nearly a quarter of a century ago, where several of the people in attendance were identified by a confidential informant as having used drugs before I arrived and you prosecuted them. You know the supposed informant said I arrived after the drugs were being used and that he specifically did not identify me as having used them. (See his statement to Reno Police Dept. page 6). You know my fingerprints were not found, along with the others, on the paraphernalia which was used and you never charged me with anything, like you charged the others.

I do not recall ever having seen the test results you mention, but I do recall being told by you, or someone from the State at that time, that the results were equivocal and that the fact that I had just had spinal surgery and was heavily medicated with prescription narcotics and analgesics explained the issue.

The claim that you couldn’t prosecute because you couldn’t prove where the supposed use took place is graphic proof of the lack of credibility of this entire attack. The crime of Being Under the Influence of a Controlled Substance does not require proof of where the use occurred, only that the defendant was under the influence in Washoe County, where the urine sample was collected. The Supreme Court of Nevada has clearly said:

“…a conviction for being under the influence of a controlled substance requires only a trace amount of the substance or its metabolites” (State v. Jones, 3 Nev. 774, 895 P. 2d 643 (1995).

Your representation that you could not have brought charges is not correct. If you really believed I was guilty, you had an obligation to bring charges and everyone knows you would have. You declined to do so a quarter of a century ago when the credibility of the charge could be tested in Court, but now unfairly bring it up when most of the evidence and witnesses are gone.

You also did not oppose my appointment by Gov. Guinn in 2005, nor my re-election in 2006, as one would expect if you believed these allegations.

My opponent has used the widely known fact that I have been actively involved in a recovery program for alcohol for over 21 years, to improperly suggest I “admitted” to seeking treatment for “substance abuse” implying it was some other substance besides alcohol. You and I have discussed this issue for years.

I’m proud of my record as District Court Judge over the past 3.75 years. The Bar Association has ranked me third highest out of the General Jurisdiction Judges in Washoe County in 2006 and again in 2008, in an anonymous poll. In 2004, I was selected Trial Lawyer of the Year for the entire State of Nevada. For nearly 20 years I’ve been honored with the highest possible rating for ability and ethics by Martindale Hubbell, another anonymous survey of lawyers and judges who know me. These things do not happen to someone with substance abuse problems. So, I really hope that you will let this unfair attack die a natural death for everyone’s sake, including the public’s, and the political process itself. (My 35 years of extensive qualifications and experience are fully highlighted on my website:Judgeperry.com.)

4. THE MACK CASE

The only thing I remember saying on KOH about MACK was that I was aware that Mexico would not extradite anyone if the death penalty was being sought and so I knew that your office would not seek it. You had no choice. I meant no criticism of you or your office. I’m sorry if I offended either.

5. NOT PROSECUTING MISDEMEANORS AND D.U.I.'s

You claim I falsely quoted you as saying because of budget concerns your office might quit prosecuting DUI’s (your e-mail p. 2, paragraph 2). In fact, in the March 25, 2008 edition of the Reno Gazette Journal, you were cited as saying, because of budget problems, you “…. couldn’t prosecute misdemeanor cases, including animal control, code violations, graffiti and possibly stalking, battery, domestic violence, and driving under the influence.” Your e-mail letter of Friday September 19th is simply mistaken about what you said.

Again, Dick, my comment on KOH was not remotely intended as a criticism. I cited your statement to illustrate how severely the criminal justice system is being impacted by our budget and to demonstrate one of the reasons why I look for alternatives, like Drug Court for non-violent addicts, alcoholics, and other lower risk offenders, rather than reflexively sending them to prison at the cost to the taxpayers of approximately $40,000.00 per year.

6. THE PINE MIDDLE SCHOOL SHOOTING

My point in mentioning the case where the juvenile came to school and shot two other students was to show that my opponent, who accuses me of being soft on crime (in 46 cases or less than 3% out of many thousands), has been involved in decisions in which one could argue he let dangerous offenders off too lightly—in that case, house arrest and no criminal record when Defendant reaches age 21. My information came exclusively from RGJ articles of March 17, 2006 and March 18, 2006 and not court records. In the first article, Jaclyn O’Malley quoted my opponent as saying that “they” were investigating to see if the defendant had planned to kill, so he could be charged as an adult. You were then cited as saying the defendant would not be charged as an adult: “… despite Reno police detective’s statement that (defendant) had spent a week planning the attack…” (Martha Belisle, RGJ, March 18, 2006). You said he was not tried as an adult because specific intent to kill could not be proved (Martha Belisle, RGJ, March 18, 2006). That’s one of the reasons he got house arrest.

You complain that I commented on a juvenile case. That’s exactly what you and my opponent did in the RGJ articles mentioned above. In fact, you explained your reason for not prosecuting the defendant as an adult and all I did was re-state the reasons you gave.

In closing, I would say that I have always been a strong supporter of law enforcement as a former officer myself. The fact that Sheriff Mike Haley, Mills Lane, Cal Dunlap, Governor Kenny Guinn and former Police Chief and Sheriff Dick Kirkland, among many other highly respected public figures, support me is strong proof of that. As a former Washoe County D.A., I understand and respect the job your office is charged to do and have a good working relationship with the majority of the office. I do not, however, and cannot favor the prosecutor, or any party, as I believe my opponent desires.

I left a very successful law practice expressly to serve the citizens of Washoe County as District Court Judge. I believe I am doing a good job, as do numerous others, and hope and believe that fair and informed voters will allow me to continue to serve them in this capacity.

May I suggest that we try to put our differences behind us and work together for the good of all of the citizens of Washoe County whom we have been elected to serve.

Sincerely,

Robert H. Perry