LAS VEGAS — When is a legal brief blistering hot?
One answer: When it asserts the office of Nevada Attorney General Catherine Cortez Masto engaged in both prosecutorial misconduct and sloppy legal practice — and then supports those assertions with strong legal arguments and evidence.
The brief in question — supporting a petition for a writ of habeas corpus joined with a motion to dismiss — was filed Monday in Clark County District Court by attorneys for Gary Trafford.
Trafford — one of two mid-level managers for Lender Processing Services (LPS) indicted by Masto’s office in mid-November — is currently being held in the Clark County Detention Center, awaiting trial.
LPS is the country’s largest back-office mortgage-default processing firm. Trafford, a title officer, was charged with 204 felony counts of “forging” documents because he directed the late Tracy Lawrence, his assistant, to sign his name on notices of default. Another 102 felony counts accuse him of offering “forged” documents for filing with the Clark County Recorder’s Office.
His attorneys are asking that he be released from imprisonment (the writ) and that the charges against him be dismissed.
“In its overzealous attempt to make a criminal case against someone connected to Nevada’s recent increase in foreclosures,” they assert, “the Nevada Attorney General … has been sloppy and has overreached.”
Not only is the AG disregarding the actual definition of “forgery,” Trafford’s attorneys argue, but the AG is also attempting to criminalize conduct that was never intended by lawmakers to be criminal, while ignoring “the operative statutes of limitations.”
“In truth,” the brief says, “Trafford’s alleged conduct was not criminal; the AG’s indictment is facially defective and is the product of prosecutorial misconduct, including fundamentally incorrect legal instructions and inflammatory hearsay presented to the grand jury.”
Not only did members of the attorney general’s office fail in their “duty to instruct the grand jury on the legal requirements for the crimes charged,” but they “actually misled the grand jury as to the definition of ‘forgery,’ causing it to return an indictment without probable cause.
“The prosecution also offered highly inflammatory and baseless hearsay testimony from its chief investigator that homeowners said they had been wrongfully foreclosed upon as a result of the NODs [notices of default] at issue in this case.
“But when grand jurors attempted to probe the factual basis for this testimony, the prosecutors improperly precluded any questioning on the subject, thereby preventing the grand jury from learning the truth.”
That truth was, asserts the brief, “that the AG actually had no evidence that homeowners were wrongfully foreclosed upon due to the NODs at issue in this case. The indictment should be dismissed to deter these prosecutorial abuses and to prevent Trafford from being prejudiced by defending against an indictment that was procured by patently wrong legal instructions and improper evidence.”
Trafford’s attorneys raise broad questions as to the fundamental legal competence of the Nevada Attorney General’s Office when they argue that the claims made by in the indictment reveal that “the AG” fails to understand the fundamental legal definition of “forgery.”
“As a matter of law,” they write, “‘forgery’ requires the AG to prove that Lawrence (1) did not have authorization to sign the NODs, and (2) acted with criminal intent to defraud.”
However, no evidence was “presented to the grand jury to establish probable cause for either of these essential elements.”
Instead, the attorneys note, when LPS notary Tracy Lawrence appeared before the grand jury, she initially testified to the exact opposite: that she had been authorized by Trafford to sign his name, and so did not believe doing so constituted forgery.
“Inexcusably, the prosecutors persisted in their erroneous understanding of the law, and actually bullied Lawrence into accepting their incorrect definition of the crime,” wrote Trafford’s attorneys.
The 43-year-old Lawrence was found dead Nov. 28, the day she was due to be in court to be sentenced as part of the plea deal she had agreed to with the attorney general’s office. Investigators have ruled out homicide but so far have not stated a cause of death.
After the “completely baseless” allegations of forgery against Trafford, say his attorneys, “the only remaining allegedly wrongful conduct is that Lawrence supposedly notarized NODs when Trafford was not physically present before her.
“But the Class D felony statute charged in the indictment does not criminalize this conduct. And the gross misdemeanor statute was never intended to criminalize the conduct at issue here, where Lawrence and Trafford had been personally acquainted for many years.
“Both the Secretary of State who proposed the law, and the Nevada legislature that enacted the law, made it clear that the gross misdemeanor statute does not apply if the notary is personally acquainted with the witness:
If it’s a notary who has known someone for a long time, and if you’re not in that [sic] presence and they notarize, they are not guilty of a gross misdemeanor.
“Under Nevada law, this clear legislative intent controls, and the conduct alleged in the indictment is not subject to criminal sanctions.”
Neither Masto’s office nor attorneys for defendant Gary Trafford would comment for this article.
The second LPS manager indicted at the same time as Trafford was Geraldine Sheppard. Indictments for both individuals emerged out of two days of grand jury proceedings, the first on Nov. 8, 2011, and the second a week later on Nov. 15.
Representing the Nevada Attorney General’s Office before the grand jury were Chief Deputy Attorney General John Kelleher, who heads the attorney general’s Mortgage Fraud Strike Force, Senior Deputy Attorney General Robert Giunta and deputy Attorneys General Sam Kern and Helene Lester.
Representing Gary Trafford in the request for the writ and dismissal of the indictment are attorneys Kirk Lenhard and Anthony Diraimondo, for the Las Vegas law firm of Brownstein Hyatt Farber Schreck, LLP, and attorneys John Hueston and Alexander Porter, for the Los Angeles firm of Irell & Manella, LLP.