The Supreme Court of Nevada took the rare step in 2001 of ordering him to prove why he shouldn’t be sanctioned for his behavior in one of his cases with a fine or a referral to the state bar for “violation of the Rules of Professional Conduct.” The ruling was disseminated statewide and, in Kephart’s own words, “professionally embarrassed” him. In his response, he wrote that the ruling had “already had a great impact” on him and promised that there wouldn’t be “a bona fide allegation of prosecutorial misconduct against me in the future.” The justices nevertheless fined him $250.
The Supreme Court’s rebuke was particularly notable in Nevada, where the judges are elected and part of the state’s insular legal community. They typically rule unanimously and seldom come down too hard on prosecutors. As one retired chief justice put it: “Picking
fights with district attorneys might not be the best thing for [a judge’s] career continuation.” But Kephart’s behavior challenged that status quo, compelling one or more of the justices to issue dissents in several cases, saying his behavior called for convictions to be overturned.
Overall, the Nevada high court has noted prosecutorial misconduct in at least five of his cases over a dozen years, not including his actions during the trial of Fred Steese — who was tried by Kephart for a 1992 murder and ruled innocent 20 years later after exculpatory
evidence was found in the prosecution’s files. In the cases in which Kephart is not named, he is the prosecutor whose misconduct is cited:
—In 1996, the court noted “several instances of prosecutorial misconduct” in a sexual assault case. The conviction was upheld, but one justice dissented, saying that Kephart had “infected” an already “muddled case” and it warranted reversal. (In 2001, a judge granted the defendant an evidentiary hearing and he was released.)
—In 1997, the court reversed the murder convictions of two men based entirely on the “deliberate” and “improper comments” made by the prosecution during cross examination and closing argument. The DA’s office had sought the death penalty, which in Nevada increases costs by about a half million dollars on average, making this and other reversals based on Kephart’s behavior expensive screw-ups for taxpayers. (Both men were retried and convicted again in 1998, one sentenced to life in prison and the other to death.)
—In 2001, in the case he was fined $250, the court said Kephart gave the jury a misleading explanation of the standard for reasonable doubt when he instructed them: “you have a gut feeling he’s guilty, he’s guilty.” A justice said at a hearing that the remark seemed “like deliberate misrepresentation.” The court upheld the conviction, but noted that Kephart’s “improper remark was particularly reprehensible because this is a capital case and the remark was gratuitous and patently inadequate to convey to the jury its duty…”
—In 2002, the court took issue with Kephart for assaulting a witness. During the trial of a sexual assault case, Kephart said he wanted to demonstrate how the victim said she was choked, pressing his forearm into the defendant’s neck while he was on the stand. The court upheld the verdict, but noted there was “absolutely no reason” for Kephart’s behavior, which went “well beyond the accepted bounds of permissible advocacy.” One justice dissented, saying “the instances of prosecutorial misconduct were pervasive and substantial… an accused who takes the stand runs many risks. One of them should not be that the prosecutor would physically assault him or her.”
—In 2008, the court tossed out a murder conviction in another death penalty case, saying, among other issues, the prosecution’s misconduct was “significant” and “occurred throughout the trial,” including Kephart’s remarks during jury selection and in closing. One judge dissented, saying the prosecutorial misconduct and other issues didn’t require reversal. (The defendant eventually pled guilty in 2014.)
—In 2002, Kephart prosecuted another highly contested murder case against Kirstin Lobato, then 19, which has garnered national outcry for the meager and sometimes contradictory evidence against her.
Lobato was recently granted an evidentiary hearing and is represented by the Innocence Project. This month, the prosecuting officer for the Nevada Commission on Judicial Discipline filed misconduct charges against Kephart for a media interview he gave about the case last
year, in which he said it “was completely justice done.” Kephart’s “statements could affect the outcome or impair the fairness of Miss Lobato’s case,” according to the formal statement of charges. The statement said Kephart violated several rules of the judicial code of conduct. He has not yet filed a reply.
Kephart, who joined the DA’s office in the early 1990s as a brash young attorney, once got in a shoving match with a defense attorney.
Another time, a judge had to admonish him for repeatedly shaking his head, making faces and rolling his eyes. His behavior eventually led to minor reprimands from the Clark County District Attorney’s Office, according to several people who worked with him during that time. In 2002, after Kephart’s reasonable-doubt flub, the entire DA’s office had to complete a two-hour ethics course and continuing legal education classes, which the deputy district attorneys tagged the “Kephart CLE.” That same year, Kephart was briefly banned from trials.
Regardless, he later became a chief deputy.
Kephart also was called before the state bar for his behavior in Steese’s murder trial, but, according to lawyers at the hearing, his boss made an appeal on behalf of him and the other prosecutor on the case, and neither was sanctioned.
Kephart declined several requests for comment. Despite these repeated critiques of his conduct, Kephart was voted onto the bench in 2010 as a justice of the peace and in 2014 moved to the Eighth Judicial District Court of Nevada, where today he presides over civil, construction and criminal cases.
Update: In his official written response to the disciplinary commission, Kephart has denied charges that he violated judicial canons with his remarks to the media about an open case. His response said that he had “participated in interim rehabilitation by taking classes,” and the commission should consider his honest motives, clean judicial disciplinary record, and “character and reputation.”
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Megan Rose covers the military for ProPublica. Previously she was the national correspondent at Stars and Stripes.