Pathologist defends Binion suffocation theory

Wednesday, April 19, 2000 | 11:24 a.m.

The prosecution's star witness, Dr. Michael Baden, took the witness stand again today to defend his theory that Ted Binion was suffocated.

On Tuesday Baden frequently sparred with well-known Milwaukee criminal attorney James Shellow, a defense team hired gun brought in to cross-examine the famed New York pathologist, who has contradicted the prosecution's other forensic expert, Chief Medical Examiner Lary Simms.

Baden, director of forensic sciences for the New York State Police, told the 12-member jury that he believed the levels of heroin and the prescription sedative Xanax in Binion's body were not enough to cause his death.

Instead, Baden testified that ruptured blood vessels under Binion's eyelids, scraps over his mouth and nose and button-like abrasions on his chest indicated that Binion was suffocated while struggling with his accused killers.

Baden, a consultant on numerous high-profile murder cases, including O.J. Simpson's, said marks on Binion's wrist suggested he had been restrained with handcuffs in the struggle.

His testimony came as the prosecution moved into the heart of its case this week against Binion's girlfriend, Sandy Murphy, and her lover Rick Tabish, who are charged with killing the wealthy gambling figure on Sept. 17, 1998, and stealing his valuables.

One day earlier Simms, who performed the autopsy on Binion's body, testified that he believed Binion died of a forced heroin and Xanax overdose.

Simms -- a less experienced pathologist who took over the medical examining duties here a couple of weeks before Binion's death -- agreed with Baden that the former casino executive was the victim of a homicide.

Prosecutors contend Murphy and Tabish pumped Binion with a liquid mixture of drugs at his home and were forced to suffocate him when his gardener, Thomas Loveday, showed up for work on the morning of Sept. 17.

Defense attorneys maintain Binion committed suicide by overdosing on heroin and Xanax, and they plan to call another celebrated pathologist, Dr. Cyril Wecht, to support their case.

Baden, who has performed more than 20,000 autopsies during his 40-year career as a forensic pathologist, said there were no known cases in the United States of someone overdosing on heroin by "chasing the dragon," which was Binion's way of smoking the street drug.

The autopsy conducted by Simms found a large amount of heroin in Binion's stomach, which seemed to bolster the prosecution's contention that the drug was forced down his throat.

Baden, a veteran of hundreds of hours of courtroom testimony, sparred all afternoon Tuesday with Shellow while Murphy and her lawyer, John Momot, looked on at the defense table with stern faces. Murphy at times looked confused and taken aback by Shellow's style.

Shellow's aggressive, sometimes condescending manner of grilling Baden also frequently drew snickers from the gallery and did not appear to sit well with some jurors. His approach was the opposite of Momot's laid-back, quick-witted style that has been well-received by the panel members.

Baden often seemed to flirt with the jurors and appeared at times to be enjoying the confrontation with Shellow, who tried to demean the pathologist's high stature in the world of forensic sciences.

Frequently, Baden, who spent all day on the witness stand, would put his right hand on his forehead and lean forward while Shellow was posing a question aimed at attacking his credibility.

Baden acknowledged that he began his association with the Binion case with the unusual arrangement of being hired by the ex-casino man's $55 million estate.

His first contact with the case came from Tom Dillard, a private investigator working for the estate.

Baden, despite prodding from Shellow, refused to say that Dillard appeared "extraordinarily biased" against the murder defendants.

"I thought Mr. Dillard was exceptionally fair-minded in his dealings with me," Baden said, adding prosecutors hired him after last August's preliminary hearing to advance his suffocation theory.

Shellow tried to show Dillard's bias by introducing an article in a local weekly that suggested through unattributed second-hand sources that Dillard was to receive $1 million from the Binion estate if he helped obtain a conviction in the Binion slaying.

But District Judge Joseph Bonaventure, outside the presence of the jury, refused to allow the Milwaukee lawyer to submit the article as evidence, saying it had nothing to do with Baden's credibility on the witness stand. The judge appeared to hold back laughter as he discussed the story from the bench.

Dillard has sued the now-defunct weekly for defamation over the article.

During a break in the trial, Bonaventure dismissed an alternate juror for ignoring his admonition and talking about the case while having her nails done over the weekend.

Prosecutors had requested the dismissal, the second of the original six alternates.

Bonaventure stopped short of saying he might reconsider a request to sequester the jury in the wake of the alternate's actions, the latest in a series of incidents outside the courtroom that has caused the judge concern.

On Monday Bonaventure scolded a veteran Golden Nugget bellman for yelling, "they're not guilty" to the jurors as they went to lunch at the downtown resort.

"This court would be remiss if it did not express to you its disappointment in your ability not to adhere to the court's instruction that you are not to discuss this case with anyone," Bonaventure told the alternate on Tuesday.

Without using the word sequester, the judge said he now was reconsidering his options to ensure that Murphy and Tabish get a fair trial.

"There are two individuals whose freedom is on the line," Bonaventure said. "Their ability to receive a fair trial depends on your adherence to the rules of this court."

Jeff German is the Sun's senior investigative reporter. He can be reached at (702) 259-4067 or by e-mail at german@lasvegassun.com.