Nevada Supreme Court: Vegas Prosecutor Elizabeth Mercer committed prosecutorial misconduct in two cases

LAS VEGAS — Clark County Nevada Chief Deputy District Attorney Elizabeth Mercer who was accused of coercing witnesses along with some Las Vegas Metropolitan Police Department vice detectives in the 2012 criminal trial of convicted pimp Ocean Fleming, recently faced further scrutiny that she committed prosecutorial misconduct in two other criminal cases.

For more information on the Ocean Fleming case read our Baltimore Post-Examiner May 15, 2018 article, “Not so special prosecutor gives convicted Las Vegas pimp a sweetheart deal,” and our May 19, 2018 article, “Affidavits provide insight into Las Vegas FBI corruption probe of Las Vegas Metro Police Department.”

On March 15 the Nevada Supreme Court in the appellate case of Alexander Sevier vs. The State of Nevada ruled, “Having concluded that the State committed reversible prosecutorial misconduct, we admonish prosecutor Elizabeth A. Mercer for her egregious and manifestly improper statements to the jury, which were magnified by the visual aid used during closing argument.” “This is the second case, of which we are aware, where Mercer flagrantly misled a jury regarding DNA evidence.”

In that appellate case, Bobby Dale Richards vs. The State of Nevada, the Nevada Supreme Court ruled on December 4, 2018, “we conclude that the prosecutor [Mercer] committed misconduct during closing argument when it asked the jury to arrive at a different conclusion than the State’s expert about DNA evidence.”

Nevada Supreme Court ruling in the Alexander Seiver case:

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of attempt robbery with use of a deadly weapon, robbery with use of a deadly weapon, false imprisonment with use of a deadly weapon, and two counts of burglary while in possession of a firearm. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

Appellant Alexander Sevier was convicted of burglarizing two separate businesses, wherein he utilized a firearm to detain and rob one victim and attempt to rob two others. The district court adjudicated Sevier as a violent habitual criminal with respect to three of the convictions and as a large habitual criminal with respect to the remaining convictions, imposing an aggregate sentence of life in prison with the possibility of parole after 12 years. Sevier contends the State committed reversible prosecutorial misconduct in misrepresenting the DNA evidence during its closing argument. We agree, reverse the judgment of conviction and remand for a new trial.

During one of the burglaries, the perpetrator covered his face with three layers of clothing—a maroon scarf; a red, white, and pink-striped scarf; and a blue skirt. The State’s DNA expert testified that each of these items contained a mixture profile of DNA but that a major DNA contributor could be identified only from the DNA obtained from the skirt, which matched Sevier. As to the two scarves, however, the expert testified that the DNA analysis was inconclusive. She reiterated this conclusion multiple times, once stating, “for these particular two items, no major contributor could have been conclusively determined,” and another time testifying, “for those two [scarves], the data was just so complex, and there was way too much information there for me to apply any of our deconvolution or unraveling of that profile to see if a major contributor could be there.” Despite the expert classifying the DNA on the two scarves as inconclusive, the State argued otherwise during closing argument:

I’ve prepared a demonstrative aid that I’m going to use which combines the mixture profiles of the scarf — the striped scarf and the maroon scarf next to the defendant’s known profile. He’s not excluded from these mixtures because all of the numbers present in his known profile are contained within that mixture. The defendant’s DNA was on all three of those items.

Sevier objected, but the court overruled the objection and told the jurors to rely on their “collective recollection” of the evidence when deliberating. The State continued its argument and again misrepresented that the DNA expert testified that Sevier was “not excluded as a contributor to these DNA samples.” The record reveals that the State made other similar representations as to the DNA evidence during the trial.

In reviewing claims of prosecutorial misconduct, we first determine if the conduct was improper and, if so, whether the conduct warrants reversal.

The State misrepresented the DNA evidence by both incorrectly characterizing it as non-exclusion evidence, rather than inconclusive, and indirectly contradicting its expert’s testimony as to the analysis of the DNA on the two scarves, which was clearly improper.  It was further improper for the State to reinforce its misrepresentation with a demonstrative aid during closing argument, circle numbers for the jury, and then state that Sevier’s DNA was on both scarves, in contradiction to its own expert’s testimony.

As we conclude that the State’s conduct was improper, we next determine whether reversal is warranted. We acknowledge that the record reveals sufficient evidence to support the convictions. However, we weigh that evidence against the character of the error here, which is substantial multiple misrepresentations to the jury in word and by visual aid, coupled with the court overruling Sevier’s objection during closing argument.  We also consider the nature of the evidence that the State misrepresented—DNA evidence, which is highly revered and relied upon by juries as it provides “powerful new evidence unlike anything known before.”  Given these considerations, the seriousness of the offenses, and the severity of the aggregate sentence imposed, we cannot say with confidence that the State’s error did not substantially affect the jury’s verdict.  This error, therefore, warrants reversal.

Having concluded that the State committed reversible prosecutorial misconduct, we admonish prosecutor Elizabeth A. Mercer for her egregious and manifestly improper statements to the jury, which were magnified by the visual aid used during closing argument. This is the second case, of which we are aware, where Mercer flagrantly misled a jury regarding DNA evidence.  The record shows that Mercer knew that the inference she was urging the jury to make was not supportable, as she unsuccessfully tried to elicit corroboration from the DNA expert during Sevier’s first trial.  Although Mercer avoided that line of questioning in the second trial, she still used the unsupported inference in closing argument at the second trial. This court has previously warned that “toying with the jurors’ imagination is risky and the responsibility of the prosecutor is to avoid the use of language that might deprive a defendant of a fair trial.”  Consequently, we refer Mercer to the State Bar of Nevada for such disciplinary investigations or proceedings as are deemed warranted.  Accordingly, we direct the clerk of this court to provide a copy of this order to the State Bar of Nevada.

Justice J. Stiglich, one of the three judges who concurred with the decision wrote:

I agree that the prosecutor committed egregious misconduct that was not harmless and therefore warrants reversal of the judgment of conviction and q remand for further proceedings. I am not convinced, however, that the prosecutor’s misconduct warrants referral to the State Bar at this time. While the prosecutor engaged in the same kind of misconduct in two cases, that misconduct was not rebuked by the trial judges in either case and was not directly rebuked by this court until our recent unpublished decision in Richards v. State, Docket No. 70530. By no means do I condone the prosecutor’s actions or question that the misconduct is clear and not subject to reasonable debate. But I see no reason to assume that our strong rebuke and remand for a new trial in this case and Richards will be insufficient to discourage the prosecutor from engaging in similar misconduct in the future.

Clark County District Attorney Steve Wolfson requested a rehearing

On March 20 Wolfson filed a petition for rehearing before the Nevada Supreme Court.  Wolfson’s petition in part states:

“The prosecutor did not mislead or lie to jurors about the evidence; instead, she attempted to persuade jurors that merely because the DNA was insufficient to get past the threshold cut offs, they should not exclude the possibility that the DNA came from Appellant.  This argument was not merely based on the opinion of the expert but on the victim’s testimony that the skirt and scarves were layered.  In this case the layering of the skirt and scarves could clearly explain why sufficient DNA would be on the skirt but not the scarves.  Jurors could fairly infer from the layering and the DNA evidence that Appellant could be the source for the DNA on the scarves.  Asking jurors to make such an inference from the opinions of experts based on the particular facts of a case is what lawyers do.”

Nevada Supreme Court denies Wolfson’s petition for rehearing

On April 25 the three Nevada Supreme Court Justices’ gave their decision on Clark County District Attorney Steve Wolfson’s petition for rehearing: Rehearing denied.

Alexander Sevier’s robbery conviction was overturned.  Nevada Department of Corrections records as of May 17 indicates that Sevier is incarcerated in the Warm Springs Correctional Center.  It is unknown whether he will be re-tried in the case.

Nevada Supreme Court ruling in the Bobby Dale Richards case:

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon. Eighth Judicial District Court, Clark County; Richard Scotti, Judge.

Appellant Bobby Richards was convicted of murdering his wife in the courtyard of their marital residence. A jury sentenced him to life without the possibility of parole, and the district court subsequently sentenced him to a consecutive term of 8 to 20 years for the deadly weapon enhancement. Because of error occurring during trial, we reverse Richards’ judgment of conviction.

Richards claims the district court failed to give a limiting instruction before the introduction of prior bad act evidence. While it is the prosecutor’s duty to request a limiting instruction be given to the jury regarding the use of prior bad act evidence, we have held that, in the event, the prosecutor neglects this duty, the district court has a sua sponte duty to raise the issue.  The limiting instruction is to be given both at the time the bad act evidence is admitted and in the final instructions to the jury.  Where a limiting instruction is not given at the time the bad act evidence is admitted but is given at the close of trial, this court considers whether the district court’s failure to timely give the instruction had a “substantial or injurious effect on the jury’s verdict.”  Put another way, “unless we are convinced that the accused suffered no prejudice as determined by the [above-quoted] test, the conviction must be reversed.”  Put another way, “unless we are convinced that the accused suffered no prejudice as determined by the [above-quoted] test, the conviction must be reversed.”  “On account of the potentially highly prejudicial nature of uncharged bad act evidence, however, it is likely that cases involving the absence of a limiting instruction on the use of uncharged bad act evidence will not constitute harmless error.”

At Richards’ trial, the State introduced testimony from several witnesses about prior incidents of domestic violence between Richards and his wife. One witness testified as to three separate prior bad acts. This same witness, along with three others, testified as to a fourth prior bad act. The fourth prior bad act involved the wife arriving home in the early morning approximately a week and a half before the murder, and Richards awaiting her arrival in the courtyard with a bat and wearing gloves. The witnesses testified that the wife was sexually assaulted by Richards that morning.

This evidence was highly prejudicial. The wife was murdered in the early morning hours and in the courtyard. The State’s theory was that she was beaten with a cylindrical object, like a bat. No instruction as to the limited use of the prior bad acts was given at the time the witnesses testified. While the district court ruled the prior bad acts were probative of intent, ill will or motive, the relationship between Richards and his wife, identity, and plan, the jury heard four witnesses testify about Richards sexually assaulting his wife with no guidance as to how it should consider the evidence or how the evidence could not be considered as proof of Richards’ propensity to commit the charged crime. Then, in the rebuttal closing argument, the State referenced these prior bad acts, going so far as to claim that if the jury had evidence of the fourth bad act alone, it would convict Richards of the murder. Considering the highly prejudicial nature of this evidence, particularly the fourth bad act, and the emphasis placed on the evidence, both by the number of witnesses and by the prosecutor’s argument, we are not convinced that the testimony did not have a substantial influence on the jury’s verdict. On the basis of this error alone, we reverse Richards’ judgment of conviction and remand for a new trial.

Moreover, we conclude that the prosecutor committed misconduct during closing argument when it asked the jury to arrive at a different conclusion than the State’s expert about DNA evidence. During the trial, the State presented expert testimony related to the results of multiple evidentiary tests. When asked about DNA evidence collected from a patio chair found in the courtyard where the murder occurred, the State’s expert testified that “this is a partial profile, but it’s so partial that it’s too limited for me to be able to make any conclusions or comparisons to an individual.” In explaining her demonstrative report, the expert clarified that the report contained “NR” notations for “No Results,” which meant she did not get any DNA profile at a particular location. Further, the expert clarified that information on the report that was in red indicated “data that’s below that threshold where our laboratory would make comparisons.”  While the report contained some information in black, indicating a DNA profile was recovered at some locations, the expert concluded that “it wasn’t enough for me to be able to make a comparison to a known individual.”

In closing argument, the prosecutor presented a chart of the DNA data for the patio chair and put it next to a chart of Richards’ DNA on a PowerPoint slide. The prosecutor circled numbers that were similar between the two, including numbers that were in red, before arguing “Now do we know that it was the defendant [sitting in the chair? Well, look at the DNA profile that [the expert] developed with regards to that swab. It might have not have [sic] met her recording requirements, but all those numbers circled in yellow, that’s the defendant’s DNA.”

This argument was in error. The State presented expert testimony that the DNA evidence was too partial or limited to make any conclusions or comparisons. Despite their own expert’s testimony, the prosecutor asked the jury to do exactly what their expert said she could not do.   The State’s argument was inconsistent with, and contrary to, the evidence the State’s argument was inconsistent with, and contrary to, the evidence presented by the expert, and “[a] prosecutor may not argue facts or inferences not supported by the evidence.”  Given our conclusion that reversal is warranted based on the failure to give a timely limiting instruction, we need not decide whether this error, alone or cumulatively, warrants reversal.   Based on the foregoing, we order the judgment of conviction reversed and remand this matter to the district court for proceedings consistent with this order.

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Nevada Department of Corrections records indicates that Bobby Dale Richards is incarcerated in the Southern Desert Correctional Center.  Richards is set to be re-tried.

Elizabeth Mercer is currently Chief Deputy District Attorney for the Clark County Nevada District Attorney’s Office.

Violent convicted pimps getting released from prison because of police and prosecutorial misconduct, and now two current cases that may be re-tried, at taxpayer expense, because of prosecutorial misconduct, we have to ask the question that the Las Vegas media doesn’t ask, “Why is that District Attorney Steve Wolfson?”

Doug Poppa

Doug authored over 135 articles on the October 1, 2017 Las Vegas Massacre, more than any other single journalist in the country. He investigates stories on corruption, law enforcement and crime. Doug is a US Army Military Police Veteran, former police officer, deputy sheriff and criminal investigator. Doug spent 20 years in the hotel/casino industry as an investigator and then as Director of Security and Surveillance. He also spent a short time with the US Dept. of Homeland Security, Transportation Security Administration. In 1986 Doug was awarded Criminal Investigator of the Year by the Loudoun County Sheriff’s Office in Virginia for his undercover work in narcotics enforcement. In 1992 and 1993 Doug testified in court that a sheriff’s office official and the county prosecutor withheld exculpatory evidence during the 1988 trial of a man accused of the attempted murder of his wife. Doug’s testimony led to a judge’s decision to order the release of the man from prison in 1992 and awarded him a new trial, in which he was later acquitted. As a result of Doug breaking the police “blue wall of silence,” he was fired by the county sheriff. His story was featured on Inside Edition, Current Affair and CBS News’ “Street Stories with Ed Bradley”. In 1992 after losing his job, at the request of the Federal Bureau of Investigation, Doug infiltrated a group of men who were plotting the kidnapping of a Dupont fortune heir and his wife. Doug has been a guest on national television and radio programs speaking on the stories he now writes as an investigative journalist.