Defense attorneys said Wednesday that Nevada prosecutors, especially in Las Vegas, use grand juries to get a second "bite" at cases already dismissed by judges, and asked state lawmakers to stop that practice.
"Here in Nevada, the grand jury is being used to perpetuate abuses of government power," said Dan Silverstein, a Clark County public defender. "A case that is dismissed for lack of probable cause in justice court has no business being taken to trial, and should not be the subject of a grand jury indictment."
Currently, about 300 cases a year in Clark County - less than 1 percent of total felony cases - go to grand juries. Some of those cases already were rejected by a judge in a preliminary hearing, who determined there wasn't enough evidence.
The grand juries aren't told when a case was already thrown out by a judge. Grand jury hearings are secret, so defense attorneys can't cross-examine witnesses.
Defense attorneys argue that grand jury indictments are meant for public corruption and other high-profile cases. Assemblyman William Horne, D-Las Vegas, said prosecutors with weak cases shouldn't get a second "bite at the apple" unless they have new evidence.
Horne, a defense lawyer who sponsored AB364, the bill to stop the practice, told the Senate Judiciary Committee that prosecutors should choose between a preliminary hearing or a grand jury indictment, but not try both. His bill won approval in the Assembly last week in a 34-8 vote.
Prosecutors and the state attorney general's office defended the practice, saying that sometimes children and other frightened witnesses want to testify, but freeze up at preliminary hearings.
"This is going to make it difficult to bring child sexual offenders to trial," said Tammy Riggs, a Washoe County deputy district attorney. "It's also going to result in dangerous offenders being released early."
Nevada law provides more protection to defendants at preliminary hearings than most states, said Riggs. It takes time to bring witnesses and provide evidence. Over more than a year, less than 10 Washoe County cases failed at preliminary hearings and then proceeded to grand juries, she said.
Jason Frierson, a lobbyist for Clark County public defenders, said the "scared witness" argument is a red herring. He said prosecutors know who will testify before they go into a preliminary hearing, and added that he wouldn't object to amending the bill to exclude child sex offenses.
"The existence of this option influences cases," said Frierson, who said prosecutors can use the threat of going to a grand jury as a negotiating tactic. "It's a fallback, a do-over," he said.