Our legal team generally agreed that Herndon has a fine reputation on the bench. They also generally agreed that Fumo has a good reputation as an attorney. Fumo has no experience as a judge, but no one thought that should be a demerit. One panelist noted that both have extensive criminal law experience, the difference being that Fumo “has represented clients.”
The general sense is that both are qualified — Fumo, a liberal assemblyman, is being supported by progressives; Herndon is being boosted by his 20 years on the bench and a new PAC (primarily funded by Sheldon Adelson). Herndon has weathered some controversy, including his role as a deputy district attorney in a nationally known case investigated by ProPublica that resulted in an apparently innocent man, Fred Steese, going to prison because prosecutors withheld exculpatory evidence. Herndon later expressed remorse.
The Steese case was problematic for some of our panelists. One panelist also pointed out a pair of high-profile reversals by the Nevada Supreme Court, including for abuse of discretion, a serious finding. In one reversal, the high court (unanimously) found that Herndon allowed a second-degree murder charge to proceed that was actually pre-empted by law. The court granted the defendant a writ of habeas corpus, citing Herndon for “manifest abuse of discretion.”
One legal panel member described the matchup this way: “Herndon has a great reputation in the legal community but the Steese case is an issue… and asking a public defender to take off a Black Lives Matter button raised eyebrows in the community (a video of that courtroom exchange four years ago is here). Ozzie has a good reputation in the legal community, but has never been on the bench and is untried as a jurist… he has a great record as a defender and legislator; progressives like him.”
Generally, Herndon got high marks for his judicial performance. “He’s always prepared,” said one lawyer who has tried a variety of cases in front of him. “He’s read everything. He knows the issues. Whether win or lose, I feel he knows issues, and gives everyone a chance to present their cases.”
Herndon is the judge for Department 3 of the Eighth Judicial District Court, a position he was appointed to by Gov. Kenny Guinn in January in 2005. He was retained by way of election in 2006 and was again re-elected in 2008 and 2014. He serves as the chief judge on the Homicide Case Team. As an attorney, he tried hundreds of cases, approximately 80 of which were felony cases, along with a variety of appeals. As a judge, he has overseen 289 cases, 243 of which went to a verdict (vs. a settlement or dismissal). Prior to serving on the bench, he was chief deputy district attorney in Clark County in the Special Victims Unit (1996-2005), deputy district attorney in Clark County (1991-1996) and an appellate law clerk in the District Attorney’s Office (1990-1991).
Fumo has practiced law since 1996 with expertise in civil litigation, criminal law and record sealing. He has served as an adjunct professor at the UNLV Boyd School, and has won the State Bar of Nevada Pro Bono Advocate of the Year Award. He is AV Rated by Martindale Hubble (their highest rating), and was named the 2019 Defender of the Year by the Nevada Attorneys for Criminal Justice (NACJ) as well as 2019 Consumer Advocate of the Year by the Nevada Trial Lawyers Association. He has no known disciplinary action in his file. While Fumo supports judicial reforms, he says he recognizes that judicial activism is not the way to go about that. He has spoken out in favor of rehabilitation over incarceration, stating that, “The tough on crime experiment of the ‘80s and ‘90s was a complete failure.” He also has spoken in favor of bail reform because he believes the current system is unfair to economically disadvantaged populations.