Independent Legal Analysis of Arrest

Las Vegas attorney, Robert Sullivan, wrote the below (unsolicited) response to Ron Johnson’s investigative report posted at this link:

http://www.scaview.org/FalseReport.html

“Dear Mr. Johnson,

Just wanted to salute you:  Your “A False Report” is extremely well written – great analysis.   I think you could even have taken it one step further…

The charge against Bob Frank and Tim Stebbins was not simply that the police report they filed was false, in some existential sense.  The DA must be prepared to prove the mens rea element.  (mens rea means the intent or the guilty mind of the actor(s)). The DA has to show (beyond a reasonable doubt) that the purported falsity of the Frank-Stebbins report was deliberate.

As you made the point very well – we still don’t even know if their report was FALSE!
…and there is good reason to think their report is, in fact, TRUE.

But let’s assume – for the sake of argument – that Messrs Frank and Stebbins’ report was false (i.e., that it contained factually erroneous information).  Where is the Henderson police department’s evidence that it was false on purpose; that it was willfully false; that it was knowingly false; that it was malicious.

Where is the mens rea?

Because, legally speaking, if Mr. Stebbins and Mr. Frank filed the report in good faith, regardless of whether it turned out to be incorrect / false, they absolutely cannot be charged with filing a false report.  You cited the operative language in your “A False Report”:

NRS 207.280 False reporting of crimes unlawful. Every person who
deliberately reports to any police officer, sheriff, district attorney,
deputy sheriff, deputy district attorney or member of the
Department of Public Safety that a felony or misdemeanor has been
committed, which causes a law enforcement agency to conduct a
criminal or internal investigation, knowing such report to be false, is
guilty of a misdemeanor.

So, bottom line:  it’s not sufficient that the report is false – it must be intentionally false.

Have you EVER seen anyone arrested for filing a false police report?  I have NEVER seen it.  I am a former federal prosecutor (USAF JAG and Special Assistant US Attorney), and I have NEVER seen anyone arrested for filing a false report, even though there are many thousands of false charges filed every year in Henderson, Las Vegas, etc.

The charge of filing a false police report is a charge reserved for very few and very rare circumstances – like the high-profile Duke Lacrosse case, where the stripper falsely accused the players of raping her.

I had a case about 18 months ago where a woman cut herself and punched her own face and then dialed 9-1-1 and told the emergency operator that my client had assaulted (battered) her.  She then filed a police report and attempted to press charges.  My client was arrested, taken to jail for booking, and was charged with felony battery.  Fortunately, I tracked down several totally unbiased third-party witnesses who all corroborated my client’s version of the story 100%.  The accuser eventually admitted that she made the whole thing up.  That’s pretty serious stuff – my client was left with a *felony arrest record* that will never go away, even though she was totally exonerated and the other woman had falsified the whole thing, wasted police resources, etc.  So I asked DA David Roger’s office and Metro to charge the accuser under NRS §207.280.  They refused.  They did not dispute that it was an airtight case, but they said they just didn’t have the police or prosecutorial resources to go after the false-accuser.

My point is that what happened to Mr. Frank and Mr. Stebbins NEVER HAPPENS, even when there really is a false report.  So why did it happen to Frank & Stebbins?  (Particularly when, as you point out, it appears that their report was either TRUE or at the very least was reported in good faith).

The answer can only be that someone with political connections made it happen.  It smells really wrong.  And, frankly, I hope the city of Henderson is stupid enough to now press charges against Stebbins & Frank, because even a third-rate lawyer could rake them over the coals for this idiocy.  More than that, I’d like to see Frank and Stebbins file a §1983 action against the city in federal court and use the attending civil discovery process to smoke out who is really behind their arrest.

As a former prosecutor, I am very confident that this was not something that just happened in the ordinary course of a police investigation.  Someone well-connected obviously has it in for Frank/Stebbins and is sending a message to them to “back off.”

“All that is necessary for the triumph of evil is that good men do nothing.” (Edmund Burke)

Again, congratulations on a well-researched and interesting column.

Best regards,“

 (Robert Sullivan)

This entry was posted on February 22, 2010 at 00:41 and is filed under 2010 Campaign, Truth Squad, SCA Board, Laws & Rules. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

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