Published Saturday August 2, 2008
County judge accused of ethical violations
BY TODD COOPER
WORLD-HERALD STAFF WRITER

A Douglas County judge faces an ethics complaint for meddling in his nephew's case and for an expletive-laced tirade he left on a prosecutor's voice mail.

The Nebraska Judicial Qualifications Commission accused Douglas County Judge Jeffrey Marcuzzo on Friday of leaving a "threatening, profane" voice mail in which he harangued then-prosecutor Chad Brown for adding a hearing to Marcuzzo's docket.

The day after the hearing was added, the judge left this voice mail for Brown: "I wanted to know, uh, why you pulled that little (expletive) trick yesterday. . . . I did not appreciate that one (expletive) bit. And if I find out you ever do that again to me or any other members of the county court bench, I'll shove it up your *** so (expletive) far it will make your throat hurt."

Marcuzzo, in his eighth year on the bench, declined to comment Friday. He later wrote a letter of apology to Brown after Douglas County Attorney Don Kleine asked to meet with him.

The 10-member commission, chaired by Nebraska Supreme Court Chief Justice Mike Heavican, alleged that Marcuzzo's behavior in both cases involved ex-parte communication in which he either orchestrated or gave the impression he was orchestrating actions.

The Nebraska Judicial Code of Conduct prohibits ex-parte communication — speaking to one side without the other present.

Marcuzzo will be allowed to formally respond to the complaint and face a public hearing.

The Nebraska Supreme Court makes the ultimate call on discipline. If allegations are proven against them, judges face reprimand, suspension or, in rare cases, removal from the bench.

According to the four-page ethics complaint:

In July 2006, Marcuzzo's nephew had been charged with violating a protection order, a misdemeanor. Prosecutors had arranged a plea bargain with the nephew's attorney in which the nephew would plead guilty and receive a short jail sentence.

The nephew failed to appear for his hearing.

Prosecutors revoked the plea offer — and a warrant went out.

Later, a prosecutor informed Marcuzzo that his nephew hadn't shown up.

Marcuzzo urged the prosecutor to keep open the plea offer. The prosecutor agreed to, as long as the nephew showed up by early the following week.

"Believe me, he'll be there," Marcuzzo said.

Marcuzzo then called the nephew's attorney and told her to arrive at 8 a.m. in an empty courtroom. Both she and the nephew showed up, and Marcuzzo discussed the plea with both.

Marcuzzo then met with Judge Lawrence Barrett and asked him if he would take the case.

Soon after, a hearing was held, and the prosecutor restated the plea agreement.

But the nephew's attorney was unaware that Marcuzzo had gotten prosecutors to renew the plea deal. She told the judge there was no agreement.

Barrett then heard arguments from both sides and sentenced the nephew to probation, a lighter sentence than prosecutors had offered.

The commission concluded: "Marcuzzo's conduct . . . considered in combination with the resulting sentence not only left the impression that Marcuzzo influenced the proceedings on his nephew's behalf, but also left the impression that Judge Barrett had collaborated to that end."

Barrett isn't facing discipline.

In the voice mail case, Marcuzzo became visibly irritated on Oct. 29, 2007, when Brown added a roughly 30-minute hearing in a burglary case to his docket. Other attorneys in the case told the commission that they believed Brown followed the proper protocol.

Marcuzzo apparently didn't.

"Anybody ever think about asking the court whether or not they wanted to switch hearings around?" he said from the bench.

At the end of the hearing on the burglary case, Marcuzzo increased the defendant's bail from $750,000 to $2.5 million.

Marcuzzo then pulled aside prosecutor Emily Beller and complained to Beller about Brown's charges against the defendant, saying that Brown "should have nailed this guy" with several felony charges.

A day later came Marcuzzo's voice mail. A day after that, Marcuzzo called out to Brown in the courthouse but Brown walked away, on the advice of his bosses. In a stern voice, Marcuzzo said, "Get over here!"

Commissioners said Marcuzzo "left the impression he had increased the defendant's bail because he was angry about the way the preliminary hearing had been rescheduled."

The commission has 10 members, including the chief justice, three attorneys, three judges and three lay members.

In his letter to Brown, Marcuzzo apologized for using "inappropriate and unwarranted language."

"I wish I could have taken back that message I left you, unfortunately, I am unable to do so," he wrote. "I can only assure you that I will exercise the proper judicial demeanor in the future and I will never allow this type of behavior to be exhibited again."