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PROVO — Utah County’s top prosecutor is taking another look at his office’s hiring practices after he brought on a retired Nevada judge who he didn’t know was recently admonished by that state’s high court for repeatedly failing to follow the law.
“It’s clear that we need to dig deeper,” Utah County Attorney David Leavitt told the Deseret News. “Learning how you can be better is painful, because it always includes an example of how you didn’t do very good.”
Leavitt isn’t saying whether he would have rejected Doug Smith’s application to join the staff as a deputy county attorney. But Leavitt is rethinking the current policy. It requires candidates to have good standing with the Utah State Bar but doesn’t include background checks or online searches.
The 2019 Nevada Supreme Court decision faulted Smith for reversals of 17 cases he presided over in a roughly seven-year period. It would have caused Leavitt concern in the hiring stage, he said, but Smith also boasts decades of experience in the criminal justice system, including more than two decades on the bench.
Leavitt described Smith as an ethical and a competent lawyer who has done a good job prosecuting felonies in his office since October 2019.
“If Doug Smith came to Utah from Nevada because of this, then my only regret is that he didn’t look at me in the eye and say, ‘You need to know that at some point in time this will become an issue, because I did this,’” Leavitt said.
While Leavitt interviewed Smith, he said he didn’t ask any probing questions about Smith’s retirement, in part because he figured Smith may have simply not wanted to run again in the state where judges are elected.
The Nevada ruling overturned a man’s 2015 murder conviction and death sentence, finding he was denied a fundamental right to confront his accusers in the trial Smith presided over. It came down a week after Smith retired as a district judge in Clark County.
“Unfortunately, this is just one in a growing list of cases where this court has reversed a judgment of conviction based on Judge Smith’s failure to follow well-established law,” Justice James Hardesty wrote in a concurring opinion. “Most troubling, Judge Smith tends to repeat the same errors, even after he has been informed of the nature of the error.”
Hardesty said the “pattern” further burdens an already-stretched criminal justice system, delays justice and forces victims to endure repeated trials.
The Nevada Commission on Judicial Discipline separately sanctioned Smith in 2018, in part for statements he made to defendants.
Smith maintains he followed the law during his time as a judge. He said he sees the criticism against him as politically motivated.
“I don’t know why they spanked me,” he told the Deseret News. “I’m very conservative. They’re very liberal.”
Smith said he moved to Utah to be close to his three adult sons and worked in divorce law before joining the Utah County Attorney’s Office. His interview process was rigorous, he said, including hypotheticals about how he would handle sensitive cases.
He figured managers would ask him about the Nevada decision, he said, but those questions never cropped up.
“Today, I wish I would have told them,” he said. “I just didn’t think that would matter. That was when I was a judge.”
Smith said he now prosecutes sex crimes and oversees the office’s diversion program allowing those charged with low-level offenses to avoid prosecution if they complete certain requirements.
“Now if I didn’t follow the law, why would he put me in a position like that?” Smith said.
He added he agrees with the philosophy of Leavitt, a Republican, that broad criminal justice reform from must come from within the system and incarceration often isn’t appropriate.
Leavitt said attorneys in his Provo office operate in three-member teams, of which at least two must agree to offer a plea bargain, ensuring that no single lawyer wields power over a defendant.
In nearby Saratoga Springs, former Nevada Judge Conrad Hafen stepped into the role of assistant city attorney in January, about three years after the judicial discipline board banished him for a string of courtroom confrontations.
