Augustine defense: Impeachment process unfair in Assembly

The lawyers representing Nevada Controller Kathy Augustine in her impeachment case Tuesday called on lawmakers to change rules they say were unfair to their client.

Attorneys Dominic Gentile and John Arrascada told the Senate Judiciary Committee if there is ever another impeachment proceeding in Legislature, it should be run more like a courtroom and less like a legislative hearing.

The Assembly voted out a bill of impeachment in November accusing Augustine of three violations. The Senate convicted her on one of the three counts, but did not consider removing her from office, instead issuing a letter of censure.

Gentile was most strident, saying the defense was told up until the last minute that special rules were being drafted to handle the evidence and the charges against Augustine by the Assembly.

"We were lied to," he said. "We were told there were going to be special rules and then, at the last minute, we were told it was just like any other hearing."

He said the Assembly's function should be to screen the evidence and charges to determine whether or not there should be a bill of impeachment. He compared it to what a prosecutor does with allegations or what a grand jury does before indicting.

"In this case, the Assembly did nothing," Gentile said. "They applied a rubber stamp."

"We were not permitted to cross examine any of the witnesses," he said. "We did not have that right. It was like any other Assembly hearing."

Assembly Speaker Richard Perkins, D-Henderson, said the impeachment proceeding was handled like a legislative hearing because that's what it was.

"I have a great deal of experience in criminal justice," said Perkins who is deputy chief of police in Henderson. "This is not a criminal justice case," he said adding that many of the rules of a court hearing don't apply.

He said the Assembly has dealt with more complex and difficult issues in a hearing format over the years and that he has faith in members of the Legislature to do so fairly.

"If counsel was unprepared for that hearing and wants to blame the Assembly for their loss, so be it," Perkins said.

The Assembly voted unanimously to impeach Augustine on three counts of ethical violations in the use of her office and staff on her 2002 campaign. Perkins and Majority Leader Barbara Buckley, D-Las Vegas, said at the time the vote indicated the Assembly's conclusion there was probable cause to send Augustine's case to the Senate for trial - a burden of proof very similar to that of a grand jury issuing an indictment but lower than that needed to convict in court.

Gentile and Arrascada urged lawmakers to require any future impeachment proceeding be conducted using court-style rules, including legal rules of evidence and allowing cross examination. They said the Assembly hearing should be a probable-cause hearing rather than political.

"Some special rules above and beyond need to be in place to make it into more of a legal proceeding," Arrascada said.

He said he was shocked when someone suggested they hire a lobbyist to push Augustine's case "because it was not precluded."

Sen. Steve Horsford, D-Las Vegas, objected to some comments, saying both houses tried to follow statute in a process that was new for all involved. "If you say you didn't get a fair opportunity in the Legislature, it's because you chose not to pursue that," he said, adding they chose not to put on a defense case in the Assembly.

Committee Chairman Mark Amodei, R-Carson City, halted the dialogue saying the purpose of the discussion was not to rehash the Augustine case but to look at how everything was handled and consider ways to make it fairer and better in the event there is ever another impeachment case brought to the Legislature. He pointed out there are several bills to strengthen state ethics laws and put some rules in for handling impeachment charges.