Henderson Councilwoman Carrie Cox asks judge to toss criminal charge

Henderson Councilwoman Carrie Cox is asking a judge to dismiss a felony charge against her.

There is insufficient evidence that the councilwoman “knowingly and willfully violated” an “archaic” state statute when she allegedly recorded another council member’s conversation, Cox’s attorney, Josh Tomsheck, argued in a 97-page petition filed in District Court Tuesday.

The charge stems from accusations made by Councilwoman Monica Larson that Cox emerged from a curtain and admitted to recording what Larson said was a private conversation with local business leaders after an event at City Hall in January.

Cox was indicted Nov. 5 by a Clark County grand jury on one charge of monitoring or attempting to monitor a private conversation and has since pleaded not guilty.

Prosecutors failed to establish that Larson’s conversation with real estate broker Michael Hiltz and developer Richard Smith was private and did not present grand jurors with evidence that could have prevented the indictment, Tomsheck wrote in the filing.

“It is crystal clear that the charge here is purely politically motivated,” Tomsheck wrote in the filing. “The conversation at issue occurred in a public place during a public event. This is not a case where someone trespassed or broke into a private residence or business to hide a recording device. This isn’t the legislative intent of the archaic statute to prevent a surreptitious intrusion into someone’s private residence or office to install a ‘bugging device.’”

A hearing to consider the petition before Judge Nadia Krall is scheduled for Jan. 6, according to District Court records.

Tomsheck declined to comment further on the filing and District Attorney Steve Wolfson said in a statement his office would respond to the petition in court and had no further comment.

‘A conversation is not private because someone says so’

Tomsheck argued in the filing that in order for Cox to be found in violation of the specific state statute she is accused of violating, she would have needed to “knowingly and willfully” recorded the conversation while knowing that doing so would be against the law.

While prosecutors likely met the bar of proving Cox knowingly recorded a conversation involving Larson, Hiltz and Smith, prosecutors also failed to present statements to grand jurors that Cox made during a Metropolitan Police Department investigation that suggested Cox did not know her conduct was illegal, Tomsheck argued.

Prosecutors failed to play the entirety of an eight-plus-minute recording investigators obtained from Cox’s phone of the conversation central to the case, Tomsheck said. Tomsheck further argued prosecutors failed to present evidence that Cox did not accidentally record the conversation.

While Larson testified to the grand jury that she could recognize her and Hiltz’s voice in a portion of the recording, Tomsheck said the recording is “largely inaudible,” because it is garbled by other voices in the background — which Tomsheck said further demonstrated Larson and others were conversing publicly.

“You can hear the background buzz and activity that would let anyone listening know they are in public,” Tomsheck wrote. “While the contents of the ‘conversation’ on the audio of the recording is not decipherable, what is clear is that whatever countless number of conversations are occurring are happening in a public forum.”

Tomsheck continued: “It is akin to an individual standing in the middle of the Fremont Street Experience and protesting a recording of themselves talking to someone else because they have unilaterally identified themselves as being in private, when every single common sense-driven and demonstrable fact screams otherwise. A conversation is not private because someone says so.”

Metro’s report also listed several other uncharged allegations. In November, the City Council voted to censureCox.

Tomsheck: Could set a precedent

The statute being used to prosecute Cox, NRS 200.650, was enacted in 1957 — before the widespread adoption of smart phones and other personal recording devices — and was never intended to include Cox’s conduct, Tomsheck argued.

Rather, the seldom charged statute was intended to eliminate so-called one-party recordings of telephone conversations and to outlaw the “bugging” of someone’s home or workplace, Tomsheck wrote.

“In the past, recording an in-person conversation would not have been easily accomplished,” Tomsheck said in the petition. “Today the opposite is true.”

Tomsheck also argued that should prosecutors be allowed to proceed with charging Cox, it could set a precedent criminalizing recording at other public venues.

For instance, recording a group of people at a concert, or inadvertently recording passersby having “private” conversations could open those recording to face felony charges, Tomsheck wrote.

Recording a conversation in a public setting was not the intended conduct that was targeted by lawmakers who worked to enact the statute, Tomsheck said.

“The examples of this illogical application of a dated stature are almost endless,” Tomsheck wrote.