Las Vegas lawyer calls Nevada Supreme Court justice ‘white supremacist’

Video obtained by the Las Vegas Review-Journal captured Fumo, a prominent Las Vegas defense attorney, using the description for Supreme Court Justice Douglas Herndon while speaking on the panel organized by UNLV’s Black Law Students Association.

During the panel discussion, Fumo mentioned an incident from 2016 when Herndon, then a district judge, told then-Deputy Public Defender Erika Ballou to remove a Black Lives Matter pin she wore into his courtroom. Ballou is now a district judge.

“She had the guts to put on a Black Lives Matter (pin), walk into a courtroom of someone who I considered a white supremacist who’s now in the Supreme Court, but he kicked her out of his courtroom for wearing that pin,” Fumo said.

Fumo defended the comment, which he made during a discussion on mentors in the law community, during a recent phone interview with the Review-Journal.

“I said someone who does something like that, I would consider to be a white supremacist,” he said. “Kind of like if it walks like a duck and quacks like a duck.”

When Ballou wore the pin in Herndon’s courtroom in September 2016, she told him she would not remove it and wanted another judge to hear the case. Herndon did not recuse himself but postponed the sentencing for Ballou’s client.

The Las Vegas Police Protective Association, the union for rank-and-file members of the Metropolitan Police Department, previously had sent a letter to the chief district judge expressing concern about public defenders wearing Black Lives Matter lapel pins in court.

Through District Court spokeswoman Mary Ann Price, Ballou declined to comment on Fumo’s recent statements.

‘Arguably defamatory’

Herndon and Fumo squared off when they ran for an open seat on the Nevada Supreme Court, which Herndon won in the November 2020 election. In a Review-Journal debate leading up to the election, Fumo criticized Herndon for his role as a prosecutor in the 1992 trial of Fred Steese, who spent 21 years in prison for a murder he did not commit.

During a recent phone interview, Herndon said he wasn’t shocked by Fumo’s comment at UNLV because of “the way he conducted himself during the campaign.”

“I think it’s incredibly offensive and arguably defamatory to say something like that, which is obviously not true and has no basis in fact,” Herndon said.

Herndon said the comment could be considered a violation of professional conduct and could rise to the level of an ethics issue with the State Bar of Nevada. He also called for Boyd Law School to reconsider its relationship with Fumo, who is an adjunct law professor.

UNLV spokesman Tony Allen said in an emailed statement that the law school had not received any complaints regarding the Oct. 13 panel.

“The law students often put on events where they ask a variety of types of lawyers to be candid about their experiences. Apparently, Fumo had this opinion,” Frank Cooper, a Boyd Law School professor and faculty adviser to the Black Law Students Association, said in an emailed statement. “I think this dispute is between Fumo and Herndon, and that our students should be left out of it.”

No bar complaints

Dan Hooge, a lawyer for the State Bar of Nevada, said in an emailed statement last week that the state bar had no active complaints against Fumo.

Other lawyers who spoke during the panel discussion did not respond to requests for comment.

Fumo said Herndon’s actions from 2016 are still concerning.

“Those are the actions of someone who has a problem with people of color,” he said.

Herndon said he stands by his decision to ask Ballou to remove her Black Lives Matter pin while she was in his courtroom, referencing a U.S. Supreme Court decision that allows judges to prohibit political symbols in the courtroom.

“As a judge, it’s not your job to be the activist. It’s your job to just follow the law in the courtroom,” he said.

In an emailed statement, District Attorney Steve Wolfson, who is running for re-election, said Fumo’s comment during the panel discussion was “disturbing and unwarranted.”

“Not only does this violate the ethical behavior of an attorney, but to speak recklessly to young impressionable law students, about a Supreme Court Justice, in this manner is just plain wrong,” Wolfson said. “Justice Herndon is not a white supremacist and an accusation like that is totally irresponsible and potentially slanderous.”

Fumo said Wolfson has failed to acknowledge racism within the criminal justice system.

“Any person that can’t acknowledge that there’s institutional racism in the courts in 2021 is not worthy of being district attorney of Clark County in 2022, and is more in line with someone who was district attorney in Selma, Alabama, in 1963,” he said.

In November 2017, the Nevada Supreme Court suspended Las Vegas attorney Jacob Hafter for lying under oath and making derogatory public comments about a district judge, whom he had accused of religious discrimination.

Contact Katelyn Newberg at knewberg@reviewjournal.com or 702-383-0240. Follow @k_newberg on Twitter.