The U.S. Supreme Court has refused to block a suit accusing Washoe District Attorney Dick Gammick of illegally retaliating against a whistleblower, defaming him and trying to get him fired.
The lawyers for Rene Botello said the court's decision sends the case back to district court for trial.
"The law will not allow Gammick to trash a good man like Mr. Botello who innocently and appropriately reported wrongful conduct," said lawyers Terri Keyser-Cooper and Diane Vaillancourt.
Gammick said more of the story will come out when they return to federal district court. "Only one side of the alleged facts have been put out," he said.
Botello was an investigator in the district attorney's sexual assault response team when, according to court documents, he found that nurse Lily Clarkson was "indisputably wrong" in her medical finding that two female children had been sexually assaulted.
Three pediatricians found no physical evidence to support the nurse's finding and said her testimony the girls were sexually penetrated were in "gross error."
When Botello took those facts to Gammick and his deputy John Helzer, "the prosecutors became angry, accused Botello of not being a team player and warned him to keep his mouth shut about Clarkson's testimony."
He resigned from the district attorney's office and took a job with the Washoe School District police.
His district court suit charges that Gammick and Helzer then tried to get the school district to fire him, made false allegations about his character and job performance with the county and demanded that Botello not be allowed to participate in any investigations because they would refuse to file any case he was involved with.
A federal district judge dismissed Botello's federal lawsuit, saying the district attorney has absolute immunity from legal action involving decisions to prosecute or not prosecute any case and related matters. Shortly after that, Botello was fired by the school district, then offered a truant officer's job paying about half as much. He is now an investigator for the Nevada Attorney General's Office.
The 9th U.S. Circuit Court of Appeals reversed the lower court's dismissal. The opinion agreed that Gammick and his office are covered by absolute immunity over judicial matters, including whether to file a case.
The appellate court did, however, express concern about Gammick's blanket refusal to deal with any case with which Botello was involved. The justices ruled the actions Gammick and Helzer took attacking Botello's character and trying to get him fired from the school district are not covered by immunity.
Gammick took the case to the U.S. Supreme Court, which on Monday refused to hear the case. That means the 9th District Court of Appeals ruling stands, sending the case back to district court for trial and ordering Gammick and the county to pay Botello's costs in the appeal case.
"Government needs whistleblowers like Mr. Botello to report on wrongdoing," said his lawyers. "They should be commended for their efforts and not hounded into losing their jobs."
Cooper and Vaillancourt said that until reporting the incorrect "gross error" in the sexual assault case, Botello had an exemplary background.
"Mr. Botello will finally get his day in court," they said.
Gammick said the decision was disappointing because he believes the 9th Circuit ruling will have a serious effect on prosecutorial immunity. That concern prompted the Nevada District Attorneys Association to ask it be allowed to join the case. Its request was granted.
"The 9th Circuit in their ruling has been very inconsistent between this case and other cases they have ruled on," Gammick said.
Gammick said district attorneys can't function if they can be sued for their decisions as a prosecutor.
"They said I acted in some other capacity I don't even have," he said.
• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750.