The Untold “Other Side” of Judge Scotti’s Controversial Decisions

In reading the unending avalanche of negative publicity and universal condemnation of Clark County District Court Judge Richard Scotti’s decision on blocking the release of those Mandalay Bay shooting autopsy reports, a nagging question keeps coming to mind:  What’s the other side of the story?

There’s got to be two side to the story, right?  I mean, that’s what mom taught us growing up.  So where is it?

Well, here’s the problem…

First, the case surrounds the autopsy report of shooting victim Chuck Hartfield – an off-duty police officer, military veteran, husband, father and youth football coach.  Officer Hartfield’s widow filed a lawsuit attempting to block the release of her late hero-husband’s autopsy report; a case that until recently, remained open.

As such, Judge Scotti has not been allowed to comment on it or defend himself.

The reason the case was still open despite the public reports that Scotti’s decision was overturned is that the Nevada Supreme Court decision was handed down by a three-judge panel, not the entire court.  So an appeal to the full court was still possible even though the outcome would likely be the same (which it was).

Secondly, even though Judge Scotti is an elected official, all elected officials aren’t created equal.  Unlike, for example, county commissioners and state legislators, Nevada judges aren’t allowed to hire campaign advisers or public relations professionals to respond to such public controversies until the year of their re-election – which in Judge Scotti’s case isn’t until 2020.

I’ve known Judge Scotti for a number of years.  And I’ve found him to be reasonable, thoughtful, compassionate and a strong advocate for the rule of law.  As such, the depictions of him in the press as someone hostile to the First Amendment and a coddler of criminals are totally in contradiction of the man I know.

So I did some checking and here’s a recap of the timeline of the controversy surrounding the release of those autopsy reports…

On January 31, 2018 Judge Tim Williams ordered the coroner to release the autopsy reports, with identifying information of the victims redacted.  But Mr. Hartfield’s widow was reportedly unaware that her murdered husband’s gruesome autopsy report was to be made public.

When she found out, she filed a lawsuit to block its release.  In her petition to the court, Mrs. Hartfield expressed concern that the redactions wouldn’t be enough to protect her husband’s identity from being disclosed and her children from learning the horrific details of his death.

Unfortunately, the reports had already been forwarded to various news agencies.

This put Judge Scotti in the untenable position of having to balance the victim’s constitutional right to privacy vs. the media’s constitutional free speech rights.  *If* he erred in his decision, he erred on the side of the victim who had already been traumatized to an unimaginable level by the murder of her husband at the hands of madman.

Indeed, had Mrs. Hartfield’s lawsuit been filed before the autopsy reports were released, the suit likely would have blocked the release pending a court decision and we wouldn’t even be having this discussion.  But it wasn’t.

So Judge Scotti was put in the position of ordering media outlets not publish the report retroactively to give Mrs. Hartfield’s lawsuit a chance to work its way through the system.

The Las Vegas Review-Journal, understandably, sued to overturn Judge Scotti’s decision.  And I get it.  It’s not their fault that the reports were released to them even if prematurely or inadvertently.  As such, they were, indeed, now in the public domain.

However, Judge Scotti’s “clawback” decision ordering the return of the documents under such highly unusual and very unfortunate circumstances was not unprecedented or necessarily an unconstitutional exercise in prior restraint of the media.

Indeed, the full Supreme Court uphel the panel’s decision that the “clawback” was inappropriate in this particular circumstance.  But to suggest that Judge Scotti’s decision at the time was completely and outrageously without merit is equally inappropriate.

Judge Scotti was put in an impossible situation; trying to balance the rights of victims in a highly emotional case with the rights of the press to publish information it obtained legally.  And unlike Solomon, splitting the baby was not an option.

In retrospect and considering the Supreme Court panel’s ruling on the case, perhaps Judge Scotti would rule differently today.

But that’s Monday morning quarterbacking.  At the time and under the circumstances, Judge Scotti reasonably and compassionately sided with the victim’s widow and children who continue to suffer through a living hell over the loss of their loved one.

Can you and I say with absolute certainty we wouldn’t have done the same?

*   *   *   *

Which brings us to two other controversial cases handled by Judge Scotti that were referenced in a recent article by Las Vegas Review-Journal columnist Jane Ann Morrison.

I’ve known and worked with Jane Ann for the better part of two decades and have found her to be fair, objective and professional.  However, once again there are two sides to every story and Judge Scotti’s side has not been fully told due to judicial limitations.

The first is the case of Dr. Jorge Burgos who, as Jane Ann noted, “pleaded guilty to lewdness with female patients.”  Judge Scotti sentenced the doctor to “three years of probation and seven days in jail,” a sentence criticized as being too light.

But here’s the rest of the story…

Dr. Burgess took “full responsibility” for his actions in a statement submitted to the court and agreed to the plea bargain; in part to save the victims from the trauma and hardship of having to appear in court.

Some 300 letters and petitions supporting Dr. Burgos were submitted to the court, including statements from two of the victims urging probation.  In addition, the District Attorney’s office did NOT oppose probation, as Dr. Burgos had no prior criminal record and a pre-sentencing evaluation determined that he was unlikely to repeat his crimes.

As such, Judge Scotti sentenced Burgos to seven days in jail to make sure he fully appreciated what he faces if he ever does it again, three years probation, registration as a sex offender, four months of “victim empathy” courses, thirty therapy sessions, no alcohol for the three-year probation period and, of course, no future contact with any of the victims.

So not such a black-and-white “too lenient” decision after all, and certainly reasonable when considering the full set of circumstances.

Which brings us to “Baby Nazi.”

By all accounts, Bayzle Morgan is a true piece of human garbage.  In the case in question, Morgan was accused of stealing a motorcycle at gunpoint.  And he’s not exactly hard to identify.

As Jane Ann notes, his “face and neck are covered with tattoos, including a swastika.”  He also has “the words ‘Baby Nazi’ tattooed on his neck and ‘Most Wanted’ on his forehead” along with a teardrop tattoo under his eye, possibly boasting that he’d committed murder.

Unlike tattoos on one’s arms, legs or chests, these tattoos couldn’t be covered up with clothing so as not to unfairly prejudice members of the jury.  And prejudiced they would be.

Prior to the Baby Nazi’s trial, the Review-Journal reported that a group of potential jurors “saw his tattoos and his bald head and said they could not be fair and impartial.”

“One potential juror,” the RJ noted, “reported feeling ‘nervous’ and ‘shaky’ last month after seeing Morgan’s teardrop tattoo, while another told the judge that Morgan’s tattoos ‘could be indicative of previous criminal acts.’  Others said the tattoos gave them a ‘negative feeling’ or a preconceived notion about Morgan’s guilt.”

Now, the average law-abiding citizen could be excused for thinking, “So what?”  The guy is clearly scum.

But that’s not the position Judge Scotti was in.  His job is to ensure that every defendant is afforded a fair trial no matter what a piece of low-life horse dung the guy might be.  Otherwise any possible conviction could be overturned on appeal – which would result in a costly re-trial or, worse, the guy’s release back into our community.

In fact, both the district attorney AND the defense attorney asked Judge Scotti to have the tattoos covered to ensure a fair trial.

So Judge Scotti ordered that Baby Nazi’s neck and noggin be completely covered by makeup for trial at a reported cost of $1,200 – FAR less than the cost of a re-trial if a conviction was overturned.

Fortunately for all of mankind – pardon me, personkind – Bayzle was convicted and Scotti sentenced him to nine years in prison for the robbery.  And while the conviction has been appealed, it wasn’t on the grounds that he didn’t get a fair trial due to possible jury prejudice over the nauseating tattoos.

But wait.  There’s more.

Baby Nazi also stands accused of murdering a 75-year-old woman.  According to a Review-Journal description of the alleged crime, he “pistol-whipped her over the head so hard that the trigger guard broke into pieces, and then shot her in the back of the head.”

Now here’s the thing…

If Baby Nazi is convicted of the murder, and if his conviction on the armed robbery holds up on appeal – which is NOT based on claims he didn’t get a fair trial due to the tattoos – that prior armed robbery conviction means this human compost heap could deservedly get the death penalty!

And for that we should all be THANKING Judge Scotti, not hanging him in effigy.

One final point of clarification…

In concluding her column Jane Ann wrote that Judge Scotti “has been taken off criminal cases.”  This is misleadingly inaccurate.

The fact is Judge Scotti – thanks to 25 years of experience and expertise as a lawyer handling construction defect cases before being elected to the bench – was promoted to the specialty court handling construction defect (CD) cases last summer at the request of Chief Judge Betsy Gonzalez, who wrote in an email to the other district court judges on August 14, 2017 that she was “pleased to announce that Judge Scotti has agreed to work on the CD Panel.”

So Judge Scotti’s move had nothing whatsoever to do with his handling of the Mandalay Bay shooting case, the Dr. Burgos case or Baby Nazi’s case.  In fact, Judge Scotti is still on call to handle “overflow” criminal cases as needed in addition to his construction defect docket.

And now, as the late Paul Harvey would say, you know…the rest of the story.

(Mr. Muth is president of CitizenOutreach.org and publisher of NevadaNewsandViews.com.  He blogs at MuthsTruths.com)