'Freedom is Not a Gift from God You Must Fight for it Every Day'

The state never opposed my Petition to Put on Calendar. The hearing was finally set for May 12, 1998. Brandi and her husband came to my office the day before, so we could talk face to face. She was a bit nervous, he was a bit protective. She broke down and cried, but I was convinced that she was telling the truth, and she was coming forward now to "do the right thing." I believed that when the judge heard her testimony, he would grant David an evidentiary hearing, and a new trial. We arrived at the courthouse. I was ready! I was fighting for truth, justice, and the American way! I had an innocent client, and I was going to prove it! My cause was just and my heart was pure! But the best laid plans of Mace and men sometimes go awry! When we arrived in the courtroom, the DA seemed concerned. He warned me of all of the pitfalls that could occur if the judge actually granted my motion. He didn't believe Brandi was credible, he thought she was lying, and he felt that "someone" might have coerced her. But in the interests of fairness, judicial economy, and to avoid that minuscule possibility that my client might actually be innocent, he offered a deal: My client pleads guilty to a felony, and he receives credit for time served. I communicated the offer. My client said "No." He wasn't going to plead to a felony after all these years. I countered asking for a gross misdemeanor (up to one year in county jail) and credit for time served. "No way" said the DA. The judge summoned us. He pointed out to the District Attorney that if he granted my motion, the prosecution would have a problem trying this case. He pointed out to me, that even if I won my motion, David would still sit in prison for at least another 60 days before we started trial. If he took the deal, the judge was inclined to release him immediately. The Judge applied some judicial leverage. A gross misdemeanor was offered, David looked at his little boy in the courtroom, and took the deal. However, he would not admit to anything that he did not do.

      David entered an Alford plea (he didn't admit any specific acts, he only admitted that the prosecutor may be able to prove the case) to the gross misdemeanor of open or gross lewdness which occurred between August 1986, and December 31, 1998, (NRS 201.210) This should have finished things, but they just got "curiouser and curiouser." Even though the judge ordered David released on his own recognizance, there were foul ups with the transporting officers, orders were lost, and I was apoplectically trying to get him out. After a particularly rude corrections officer told me where to get off, I enlisted the help of the judge who wanted to know why his order wasn't followed. Two days after that conversation, David was finally released. That should be it, right?
Wrong! In Nevada, effective the first of July 1997, the legislature enacted a lifetime registration requirement for sex offenders. Guess what? Open and gross lewdness is listed as a sex offense. The statute reads that a sex offender must register at the police department within 48 hrs of release. David was finally released on a Friday. He dutifully went down to register even though I had filed a petition to terminate the duty of sex offender registration, based on the fact that even though he entered an Alford plea, Brandi's testimony and the polygraph results demonstrated that David did not have any sexual contact with the "alleged" victim. NRS207.156(which was subsequently repealed), was in effect between August 1986, and December 31, 1998, when the alleged offense took place. This statute allows the court to terminate his duty to register as a sex offender. The DA didn't file any opposition, but he argued that David must register. The judge ruled in my favor. You would think this is the end of the story. Wrong again!

      When David was released, the Judge ruled that he didn't need to register as a sex offender. However, he did need to register as an ex-felon (for a previous conviction). The employees of the police insisted he needed to register as a sex offender, and David was about to do so when he called me. I spoke to the police department's employee, who adamantly informed David he could not leave without registering. I told David to "Get the hell out of Dodge." He said she grabbed him, but he kept walking. I got a copy of the Judge's order and sent it back with David. They still tried to make him register as a sex offender.

      The judge finally talked to someone over there and consequently, David did not register as a sex offender. David has been spending time with his family and looking for a job. He'll do any kind of work. We keep in touch. I really feel like I was on the side of the angels. While we both would have preferred to ride to victory on a winged chariot, in the words of Mick Jagger, "You can't always get what you want, but if you try, sometime you just might find you get what you need." David Abernathie needed to get out of prison as soon as possible.

Immortal Words
When he accepted his party's presidential nomination in July 1964, Barry Goldwater said ". . . extremism in defense of liberty is no vice! Moderation in the pursuit of justice is no virtue!" Was David moderate in his pursuit of justice after languishing for eight years in prison, going through several lawyers, and filing numerous unsuccessful petitions for post-conviction relief? I don't think so! Finally, in the immortal words of Richard Pryor: "There is no justice, just us!"

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