Clark County District Attorney Tom Carroll

          The job of a prosecutor is to uphold the law, whatever the outcome may be.  Their job is NOT to win at any cost, it’s NOT to subvert the law or to violate the rules of criminal procedure.  Knowingly doing these things is part of what makes up a malicious prosecution and more importantly, prosecutorial misconduct.  Clark County Assistant District Attorney Tom Carroll did exactly that.

          Tom Carroll violated state law when he purposely didn’t instruct his expert to prepare a report on his findings, which led to Carroll again violating state law by not providing me with a copy of his expert’s report 21 days prior to the beginning of my trial (NRS 174.234).  Carroll also violated the rules of disclosure by refusing to provide me with a copy of the search warrant for my cell phone.  Carroll violated Pennsylvania statute 35P.S.780-119 when he compelled a person to testify about an expunged case.  Carroll never verified that the people depicted in the pornography were actually underage.  Even though well established case law (U.S. vs. Sanchez, Moore vs. State) states that prosecutors can’t use unproven allegations or charges that one has been acquitted of to show a pattern of behavior or propensity to commit a crime, Tom Carroll did exactly that.

          Tom Carroll chose to conduct a preliminary hearing instead of proceeding by grand jury because it is easier to get weak cases bound over for trial with a preliminary hearing. In a preliminary hearing, the defendant, ME, can’t testify and defend himself and only one person, a judge, determines if there is enough to bind him over for trial.  In a grand jury indictment, the defendant, ME, gets to testify and defend himself and  12 or more citizens, not a judge, then decide if there is enough to bind him over for trial.

          Tom Carroll certainly had a weak case against me.  Changing stories from his witnesses and pornography that was NEVER proven to be of underage people.  Would the grand jury have believed all the girls’ stories?  Would the grand jury have allowed the pornography to go to trial knowing there was no proof that it was of underage people?  The jury in my trial acquitted me of 3 girls, and just over half of the pornography, so one would assume the grand jury would have thrown out at least as much before even getting to trial.  Tom Carroll couldn’t risk that, so he by-passed the grand jury and proceeded with a preliminary hearing.Tom Carroll’s intent was to bring as many charges as possible to trial.  He went with the old adage “if you throw enough shit on a wall, some of it will stick.” 

          A.D.A. Carroll would need someone to verify the ages of the people in the pornography,  in order to prove that it was of underage people.  He sent a copy of it to the FBI, but they were unable to verify that the people in the pornography were underage.  So Carroll then enlisted the services of his expert, Dr. Michael Zbiegien, the medical director of emergency services at Sunrise Children’s Hospital.  Yes, Carroll’s expert was an emergency room doctor with NO expertise or training in determining the age of a person.

          Carroll and Zbiegien met and reviewed the pornography twice before trial.  Zbiegien told Carroll that he could NOT make any determination of age on 7 of the 13 images.  With this knowledge from his expert, Carroll should have dismissed at least 7 of the 13 pornography charges against me as he had no proof, let alone proof beyond a reasonable doubt, that they were actually child pornography. 

          Instead of honoring the oath he took to uphold the law, Carroll attempted to by-pass the use of his expert when he told Judge Jackie Glass that he couldn’t find his expert.  Carroll then asked Glass that no experts be required to testify at trial.  My attorney reminded Carroll that the law required the pornography to be verified and proven.  At that time Judge Glass agreed with my attorney and even told Carroll that she would expect his expert to be able to explain the differences between a 16 & 17 year old.  Carroll would have to produce his expert for trial.

          A.D.A. Carroll still had the opportunity to do his job, according to the oath he took to uphold the law, by dismissing charges he could not prove.

Nevada law (NRS 199.200) states:

          Every unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. 

          Carroll, instead, chose to subvert the law and ignore his oath by bringing charges to trial that he knew he could not prove.  Worse still, Carroll violated another Nevada law when he didn’t provide me with a copy of his expert’s report. 

NRS 174.234 states:

     ….the party who intends to call the expert witness shall file and serve upon the opposing party, not less than 21 days before trial, a written notice containing all reports made by the expert witness.

          A.D.A. Tom Carroll met with his expert a second time, one week before trial.  Carroll never told his expert to prepare a report and subsequently never provided me with a copy of the report as the law dictates.  Why did Carroll violate the law and not have his expert prepare a report and provide me with a copy?  Because had my attorney received a report from Carroll’s expert 21 days before trial as the law requires, he would have moved for a dismissal of the pornography charges.  Tom Carroll’s expert testified at trial that he couldn’t medically or scientifically verify the ages of any of the people in the pornography. 

          My attorney objected to Carroll’s expert testifying as the law requires a report which was never provided to us.  My attorney cited the law to Judge Jackie Glass (NRS 174.234), but she was determined to help Tom Carroll convict me as she allowed Carroll’s expert to testify in violation of the Nevada law.  Then, after only a few questions to Carroll’s expert by my attorney, Judge Glass interrupted and stopped the trial.  She took all attorneys into her chambers and announced that she was overruling herself.  Yes, overruling herself! This is unheard of as neither the D.A nor my attorney asked her to do so.  Judge Glass had now decided, in the middle of trial, that no experts would be needed.  Why? Because Tom Carroll’s expert admitted that he could NOT verify the ages of the people in the pornography.  Judge Glass told the jury that they didn’t have to believe the experts and could decide for themselves if the people in the pornography were underage.  That’s like allowing a jury to compare fingerprints or DNA for themselves!  It’s unbelievable, but another clear example of Judge Glass helping Tom Carroll win his case against me. 

          Tom Carroll knew that detective Pena had violated the law and my rights twice.  Once by lying on a search warrant affidavit  6 times in order to deceive a judge into thinking he had probable cause for a search warrant which he did not.  The second violation occurred when detective Pena seized property without ever getting a search warrant.

NRS 199.130 states: 

          A person who makes any false or fictitious affidavit in writing before any officer authorized to administer oaths, with the intent to secure a warrant to search the premises of or the seizing of goods, is guilty of perjury, which is a category D felony.

NRS 199.440 states:

          Whoever shall maliciously, and without probable cause, procure a search warrant to be issued and executed shall be deemed guilty of a gross misdemeanor. 

NRS 179.075 states:

          The officer taking property under the warrant shall give the person, from whom the property was taken, a copy of the warrant and receipt for the property taken.

          The 4th Amendment of the U.S. Constitution also requires probable cause and protects citizens against illegal search and/or seizure of property.  Detective Pena violated 3 Nevada laws and 1 Federal law when he knowingly lied on one search warrant to give the illusion of having probable cause.  Then, he later seized property without obtaining a search warrant at all.  Tom Carroll knew this and chose to argue against the law instead of following his oath to uphold the law.  Click on the search warrant tab and detective Pena’s tab to read more about these violations of the law. 

          Tom Carroll violated Pennsylvania law when he compelled a person to testify about an expunged case. 

Pennsylvania Statute 35P.S. 780-119 states:

          Any expunged record of arrest or prosecution shall not hereafter be regarded as an arrest- or prosecution for the purpose of any statute or regulation or license or questionnaire or any other public or private purpose.  No person shall be permitted to learn of an expunction either directly or indirectly.  Any person, except the individual arrested or prosecuted, who divulges such information in violation of this subsection shall be guilty of a summary offense.

          Tom Carroll violated laws, ignored the criminal rules of procedure and completely ignored his oath to uphold the law.  He did it knowingly and willingly.  His sole purpose was to convict me in spite of the law, and his method was that of character assassination. 

NRS 48.035 states:

          Evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or misleading the jury. 

NRS 48.045 states:

          Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. 

U.S. v. Dintz

          …bad faith conduct by a judge or prosecutor threatens the harassment of an accused by successive prosecutions so as to afford the prosecution a more favorable opportunity to convict the defendant. 

Green v. U.S

          …the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to the expense and ordeal as well as enhancing the possibility that even though innocent he may be found guilty. 

Arizona v. Washington

          …a second prosecution increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. 

U.S. v. Kessler

          …otherwise a prosecutor would have option the of first trying his case with inadmissible, prejudicial, and irrelevant evidence-committing known error-in hopes of “getting away” with it, with the ability to retry the case. 

          All of these caselaw directly relate to what A.D.A. Tom Carroll and Judge Jackie Glass did in my case.  They brought in and allowed inadmissible, prejudicial, and irrelevant information to be introduced at my trial.  They knowingly and willingly did this knowing that, at worst, they would get a second attempt to convict me.  It costs them nothing, but costs me everything. 

          Appellate courts call it “error” when they overturn cases.  This isn’t error.  Tom Carroll and Jackie Glass knew exactly what they were doing.  My attorney pointed out all of their violations and misconduct.  They knowingly and willingly violated the law and my right to a fair trial with no fear of disciplinary actions or legal repercussions.  They abused the legal system plain and simple. 

          Tom Carroll used character assassination instead of evidence to convict me.  He violated laws, brought charges he knew he could not prove, and used the media to convict me even before my trial had begun. 

          All of this amounts to prosecutorial misconduct and a malicious prosecution by A.D.A Tom Carroll.  Much like the Hays v. Farwell case, the D.A, district court judge, and Nevada Supreme Court did not rule according to the law, but instead covered up each other’s violations.  It took a Federal judge to rule in Hays’ favor, overturn his convictions, and set him free.  That is where I am headed now, the federal courts.  Hopefully, they will have the integrity to rule according to the LAW.  Something Nevada’s justice system has repeatedly refused to do.