Supreme Court reverses conviction over judge's error

The Nevada Supreme Court ruled Wednesday that defendants can't be forced to admit guilt in order to have jurors consider a lesser charge.

The case involved charges of battery on a police officer against Carlos Rosas. His lawyer sought to let the jury consider the lesser but similar offense of resisting a public officer.

The judge refused that instruction, which the high court said was in error because a defendant in Nevada "has a right to a jury instruction on such a lesser-included offense as long as there is some evidence to support the offense."

They said in Rosas' case there was conflicting testimony about how he and the officer got into a wrestling match and that Rosas was entitled to have jurors consider his argument.

At the same time, however, the court took a closer look at previous decisions that have essentially made it a requirement that the lesser-included offense be consistent with the defense theory and the defendant's testimony.

In Wednesday's decision, they wrote that violates a defendant's rights by essentially requiring him to present evidence or admit culpability for the lesser-included criminal offense.

And they wrote that requirement would violate the defendant's right to have the jury decide questions of fact. The Nevada Constitution, they said, leaves the jury to determine all questions of fact in criminal cases.

The opinion was unanimous.

In addition, the court threw out a Clark County District Court order disqualifying a woman's lawyer in a divorce case.

The lawyer, Robert Lueck of Las Vegas, was disqualified because he was on a list of those Judge Anthony Del Vecchio had problems or issues with.

The opinion issued Wednesday rules that when a judge's duty to sit on a case conflicts with a client's right to choose counsel, the client's right generally prevails unless the lawyer was specifically hired for the purpose of disqualifying that judge.

The court said there is no evidence Lueck was hired to force Del Vecchio off the case and vacated the order disqualifying him from the case.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.