Clark County Superior Court Judge Rich Melnick on Monday dismissed a perjury case against convicted child rapist Steven Dillon because a former judge improperly sealed court records in the case. Melnick also ordered that the records be unsealed.
"The proceedings were irregular," Melnick said.
Senior Deputy Prosecutor Alan Harvey first brought attention to the improperly sealed records during a December court hearing related to Dillon's 2008 rape case, which has languished in the court system following an appeal and other complications. Five days after the Dec. 5 hearing, Prosecuting Attorney Tony Golik placed Harvey on paid administrative leave, citing "allegations of inappropriate professional conduct and/or violation of county work standards."
Melnick said Monday that former Superior Court Judge John Wulle sealed the court records in Dillon's perjury case on Oct. 6, 2011, in a closed hearing without Dillon's knowledge. There also were no written filings in support of the motion to seal, Melnick said.
The main purpose of Monday's court hearing was to resentence Dillon for the August 2008 rape of a 13-year-old boy. A Clark County jury convicted Dillon in 2009 of both kidnapping and rape. The state Court of Appeals later ruled that Dillon wasn't guilty of kidnapping because the boy consented to going to Dillon's home. As a result, Dillon had to be resentenced, even though it didn't change his prison sentence: 25 years.
Dillon's perjury case sprouted from his rape case.
Court records indicate that two years ago, Harvey accused Dillon's veteran defense attorney, Jeff Sowder, of assisting Dillon in committing perjury during testimony in September 2011.
Harvey filed a motion on Oct. 4, 2011, to disqualify Sowder from representing Dillon, claiming that Sowder was an uncharged accomplice to Dillon's perjury. Dillon pleaded guilty to second-degree perjury on Dec. 7, 2011, and was sentenced to 22 months in prison on the charge. He is no longer required to serve those 22 months now that his perjury case has been dismissed.
Golik, who is Harvey's boss, said Harvey did not have evidence that Sowder had committed a crime. Furthermore, Harvey filed the motion against Sowder without Golik's permission, Golik said.
"That allegation (against Sowder) should never have been made," Golik said in a phone interview. "There were no facts to support that. That was the reason we promptly struck the motion and moved to have it sealed."
He said he ordered Deputy Prosecutor Anne Cruser to contact Sowder and, by agreement, strike the motion and ask then Judge Wulle to seal it. Cruser and Sowder went before Judge Wulle to make the request on Oct. 6, 2011, during a closed hearing. Wulle agreed to seal the motion.
Golik now says that Wulle's order arguably may have been "a technical violation" of court rules. Wulle, who is no longer a judge, has said he has no memory of the hearing.
The issue resurfaced on Dec. 5, 2013. Harvey and Sowder appeared in front of Melnick to discuss Dillon's resentencing in the rape case. Harvey again sought to disqualify Sowder, this time from the rape case. One of Harvey's supporting arguments was that Sowder had been involved in Dillon's perjury case and had been involved in the motion to seal the related court records. Melnick agreed to disqualify Sowder to avoid any potential conflict of interest, but the judge said he found no evidence Sowder had committed wrongdoing.
Melnick then assigned Vancouver attorney Bob Vukanovich to replace Sowder as Dillon's attorney for the resentencing.
Vukanovich said when he learned about the improperly sealed court records, he decided to ask Melnick to vacate Dillon's perjury conviction.
Dillon was never informed about the sealed documents, and had he known, he may have decided against pleading guilty to the perjury charge, Vukanovich said.
"It may have put some things in a different light," Vukanovich said.
Golik said Monday that he jointly agreed to Vukanovich's request to vacate the conviction because after a careful review of records, Golik is uncertain whether there was enough evidence in the first place to charge Dillon with perjury.
He said he plans to forward the perjury case to the state attorney general's office for a third-party review. The attorney general will decide whether a new perjury charge will be filed against Dillon.
Meanwhile, Golik said his office continues to investigate the professional conduct allegations against Harvey. The specific allegations have not been disclosed due to employee confidentiality rules.