Surprising testimony cuts into Murphy, Tabish defense

Friday, Aug. 20, 1999 | 4:31 a.m.

Prosecutors are expected to have an easier time proving Ted Binion was murdered now that a nationally known pathologist has concluded the gambling figure was suffocated.

"It's almost impossible to smother yourself to death," District Attorney Stewart Bell said this morning.

Dr. Michael Baden, director of forensics for the New York State Police, stunned the courtroom of Justice of the Peace Jennifer Togliatti on Thursday when he offered the opinion that Binion was the victim of the suffocation technique, known as Burkeing, that originated in 19th century Scotland.

Baden, a forensics expert in the death of John Belushi and at the O.J. Simpson murder trial, testified that Binion's wrists appeared to have been restrained by handcuffs and that someone either had sat or put pressure on his chest and smothered him with their hands or a pillow.

His conclusion differed with the opinion of Clark County Chief Medical Examiner Lary Simms, who testified earlier in the day that he believed 55-year-old Binion died Sept. 17 after being forced to take lethal levels of heroin and the prescription sedative, Xanax.

The testimony of the two pathologists came on the third day of the preliminary hearing for Binion's accused killers, his girlfriend Sandy Murphy, and her reported lover, Rick Tabish. After the hearing, which is expected to last two weeks, Togliatti will decide whether to bind over the defendants for trial.

Though Baden and Simms had separate opinions about the manner in which Binion died, both concluded the former Horseshoe Club executive was a homicide victim.

Prosecutors went into the hearing this week believing the forced drug overdose theory advanced by Simms.

But they abruptly switched gears Wednesday after Baden, hired as an expert witness by Binion's $30 million estate, informed them of his suffocation conclusion.

By embracing Baden's analysis, prosecutors believe they have eliminated the possibility that Binion committed suicide or died of a drug overdose -- claims both Murphy and Tabish were preparing to advance in their defense. Drugs now have become secondary to the murder case.

If defense lawyers still intend to pursue the suicide or accident theory, they may have to rely in part on Simms, whom they aggressively attacked on the witness stand Thursday.

Baden, who has performed more than 20,000 autopsies during his 40-year career, many as a pathologist in the New York City medical examiner's office, was given full access to records in the Binion case, including tissue samples and autopsy and death scene photos.

He was questioned for three hours on witness stand Thursday.

Murphy and Tabish and their lawyers, Bill Terry and Steve Wolfson, spent much of that time on the edge of their seats listening intently to his words.

After Baden's testimony, Togliatti allowed Chief Deputy District Attorney David Roger to amend the criminal complaint for the third time to include language that Binion may have been suffocated.

Terry and Wolfson objected to allowing two theories of death in the complaint and sought to dismiss the charges, saying prosecutors were trying to "have their cake and eat it too."

But Togliatti rejected their argument.

Although the drug overdose theory remains part of the case, prosecutors now plan to focus their attention on the suffocation angle and expect Baden will become their chief witness at trial.

Prosecutors still believe Murphy and Tabish intended to make Binion's death look like a drug overdose, and they don't plan to radically alter their witness list during the preliminary hearing.

Bell acknowledged, however, that investigators have a lot more work on their hands before the trial to corroborate the evidence that suggests Binion was suffocated.

"The more we can pinpoint the certainty as to the cause of death the better our chance in front of a jury if we get that far," Bell said. "We have worked on this case from shortly after the time of death and spent hundreds and hundreds of hours on it, and we will continue to do that as long as the case remains alive in the system."

During Thursday's hearing, Baden agreed with Simms that Binion died several hours before Murphy had reported finding his body at 3:55 p.m.

Baden -- who once chaired the forensics panel of a congressional committee that investigated the assassinations of President John F. Kennedy and Martin Luther King -- estimated Binion may have been dead five to eight hours before Murphy telephoned police.

Baden, however, said he disagreed with Simms in that he didn't believe the level of heroin and Xanax in his system was enough to kill the casino man. Because Binion was a heroin user, he would have a higher tolerance for the drug than most people, he said.

Bruises and abrasions on Binion's wrists, chest and back likely occurred just prior to his death and were the result of the effort to suffocate him, Baden said.

The scrapes on his wrists looked like they could have occurred from handcuffs, he said.

Two circular abrasions on Binion's chest, he said, appeared to have been the result of pressure being exerted on the chest. One bruise looked like an imprint of a button on his shirt.

Baden, who toured Binion's 2408 Palominio Lane home before his testimony Thursday, said he also noticed small ruptures of the blood vessels under Binion's eyelids, which further indicated to him that Binion was suffocated.

Earlier Thursday, while Simms was identifying autopsy photos, Murphy broke down and cried and was excused from the courtroom briefly to compose herself. Some of the photos had been passed to her lawyers at the defense table.

Today Binion's real estate agent, Barbara Brown, was to testify about a phone conversation she had with Murphy at 12:15 p.m. the day Binion was murdered.

Brown had called Binion's home looking to confirm a luncheon appointment with Binion the next day, but encountered a frazzled Murphy complaining about living with a heroin addict.

Investigators believe Binion already was dead by the time of that call.

Binion's housekeeper, Mary Montoya-Gascoigne, also was expected to take the witness stand today.

Murphy had asked the housekeeper not to come to work that day, saying Binion was feeling sick.

archive