Defense argues juror misconduct in Binion case

Angie Wagner

Saturday, Aug. 12, 2000 | 9:59 a.m.

LAS VEGAS - Juror misconduct could win convicted murderers Sandy Murphy and Rick Tabish a new trial. But proving it is something else.

Defense attorneys in the Ted Binion murder case tried to show Friday that jurors acted inappropriately during deliberations. But only one juror seemed to say that anything had gone awry.

Juror Joan Sanders testified during the daylong hearing that other jurors relied heavily on a set of partial jury instructions instead of the official copy given to them.

The scheduled three-day evidentiary hearing will determine if Murphy, 28, and Tabish, 35, will be tried again for killing the gambling figure two years ago.

Sanders said each juror was given a copy of the partial instructions and could take them home at the end of each day. She was unsure who created the instruction list.

In one of the instructions, a definition of first-degree murder is given as guilty "beyond a shadow of a doubt."

The defense is trying to show that the jury erred in relying on the partial instructions.

But other jurors testified Friday that the partial instructions were just a reference for the official instructions issued by the trial judge. The other 11 jurors have also said in affidavits that the summary was just an index.

Murphy, who was Binion's live-in girlfriend, and Tabish, who became her lover, were convicted in May of killing the gambling figure in September 1998. Prosecutors said the lovers forced Binion to ingest a lethal cocktail of heroin and the sedative Xanax before smothering him. The defense said the heroin addict simply died of an overdose.

The jury recommended that they spend life in prison with parole possible after 20 years.

In July, defense attorneys filed a motion for a new trial on the grounds of juror misconduct, ineffective counsel and that prosecutors planted a snitch in Tabish's jail cell.

Sanders went to Murphy's attorney, John Momot, after the trial to express concerns she had during deliberations. In an affidavit filed Thursday, Sanders said she does not believe Murphy or Tabish killed the former casino executive.

She said she voted to convict them of murder only after other jurors told her about "depraved indifference," a term not included in jury instructions.

Sanders said it was explained to her that "depraved indifference" means if someone is present at the time of death and does nothing to prevent it, that is the same as murder.

District Judge Joseph Bonaventure ruled Friday that the juror couldn't be asked about her current misgivings regarding the verdict.

Other jurors testified that "depraved indifference" was mentioned several times, but not heavily discussed. The word was listed in a time line written by jury foreman Artie Spear.

The hearing continues Monday.