Ex-drug prosecutor’s lawyer wants judge disqualified, sentence tossed

A lawyer for beleaguered former prosecutor David Schubert is demanding a district judge be disqualified and a nine-month jail sentence tossed, claiming she showed bias against his client.

Veteran defense attorney Bill Terry filed a motion Monday to disqualify Judge Carolyn Ellsworth from Schubert’s case, alleging she violated procedure by adjudicating him guilty before his Feb. 27 sentencing hearing.

“The writing was on the wall,” Terry wrote in his motion, referring to a moment at the hearing when Ellsworth’s court marshal handcuffed Schubert before the judge had announced she was sentencing him to nine months in jail for his buying $40 of rock cocaine last year.

At the hearing, Terry verbally corrected the judge on the proper adjudication procedure and the marshal for smacking metal bracelets on Schubert before the sentence was announced, according to a transcript of the hearing. Both times Ellsworth relented.

The judge’s bias “superseded the independent judicial review and independent determination of an appropriate sentence,” the motion said.

As part of a deal with the state attorney general’s office, Schubert pleaded guilty to a felony charge of cocaine possession, which under state law results in mandatory probation.

At the sentencing hearing, Ellsworth called the deal “offensive” and berated Schubert as “a disgrace to his oath as a prosecutor and a lawyer.”

However, court records show that on Feb. 6, Ellsworth approved the deal, which allowed prosecutors to drop three other charges, including unlawful possession of a firearm. The judge had questioned whether there was misconduct by the state attorney general’s office for agreeing to the plea deal with Schubert, but found none.

The Department of Parole and Probation had recommended probation for Schubert and a stint in drug court, where, if successful, he could clear his name and continue practicing law.

But Ellsworth, who is one of two district judges running for election this year, said, “I’m not going to give the special treatment,” and sentenced Schubert to three years of probation, which included a $5,000 fine, community service and nine months in the Clark County Detention Center. State law allows a judge to order a defendant to serve a year of the probation in jail.

Terry’s motion demands that Ellsworth be recused from the case and that “any and all actions conducted by her including the sentence must be done anew by an unbiased and unprejudiced judge.”

Ellsworth declined to respond to the motion because it is a pending case.

A hearing date was not set on the motion to disqualify the judge as of late Tuesday, court records show.

Ellsworth ordered Schubert to surrender and start his sentence March 12.

Las Vegas police arrested the 10-year veteran prosecutor in March 2011 after they watched a man get out of Schubert’s car, go into an apartment complex and return. Officers found Schubert with .01 grams of rock cocaine and confiscated a 9 mm handgun from his car.

Schubert, 48, resigned from the prosecutor’s office after his arrest and underwent two months of inpatient substance abuse counseling. He has been undergoing outpatient alcohol and drug counseling since May .

In December, Judge Doug Herndon recused himself from the case, telling Schubert that he was getting a better deal than some defendants.

In contrast, two high-profile cocaine possession prosecutions handled by Schubert — those of celebrities Paris Hilton and Bruno Mars, who both had more cocaine than the former prosecutor — resulted in probation and no jail time.

Hilton, 30, was arrested after police found 0.8 grams of cocaine that fell out of her purse after a traffic stop on the Strip in August 2010. She received a year of probation on misdemeanor cocaine possession and obstruction charges and completed probation in the fall.

Mars, 26, was cleared in January of a felony cocaine possession charge after staying out of trouble for a year and meeting other conditions of a plea deal. The Grammy-winning pop star acknowledged in court in February 2011 that he had 2.6 grams of cocaine after a performance at a Hard Rock Hotel nightclub.

Contact reporter Francis McCabe at fmccabe@reviewjournal.com or 702-380-1039.