Former jurors defend actions in Binion trial

Monday, Aug. 14, 2000 | 11:09 a.m.

More jurors took the witness stand today to defend their conduct in the Ted Binion murder case, as defense lawyers continued their efforts to win new trials for Sandy Murphy and Rick Tabish.

Jurors Judith Shaw and Fu Cam Nguyen testified that they never heard the phrase "depraved indifference" during the 12-member jury's eight days of deliberations in May.

But both jurors acknowledged they used documents not placed into evidence as a guide before convicting Murphy and Tabish of killing 55-year-old Binion, a wealthy gambling figure.

On Friday dissident juror Joan Sanders and several of her colleagues spent the day on the witness stand answering questions from defense lawyers about how depraved indifference figured into their deliberations.

Sanders had signed a defense affidavit in which she said the phrase was described to her by other jurors as meaning the defendants could be guilty of killing Binion if they merely were in his house at the time of his Sept. 17, 1998, death.

She said she voted to convict Murphy and Tabish only after depraved indifference, which was not included in the jury instructions, was explained to her.

Attorney John Momot, who represents Murphy, charged that the defendants deserve a new trial because the jurors relied upon an improper legal standard to convict them.

Depraved indifference is used in criminal cases in some states, but not in Nevada.

"It infected the jury deliberations," Momot told District Judge Joseph Bonaventure. "That's the point. That's the linchpin of the case."

Juror Chris Sowell said the phrase merely was bandied about to describe a mind-set and did not play a major role in the deliberations. Juror Christy Miller said she didn't even recall the term.

Friday's proceeding ended up being much tamer than defense lawyers had predicted.

Bonaventure granted a motion by prosecutors barring him from considering any testimony that delved into the "mental processes" of the 12 jurors who convicted Murphy and Tabish on May 19.

That meant most of the comments by Sanders in her affidavit, including her new belief that Murphy and Tabish did not kill Binion, were stricken from the record.

Defense lawyers also were forbidden from asking questions that might provide insight into what the jurors were thinking during their deliberations.

Prosecutors never bothered to ask Sanders questions.

Sanders described several documents not placed into evidence that she and her fellow jurors used while deliberating.

Those documents, which defense lawyers called "fugitive documents," included a list of witnesses, a summary of the 11 charges against the defendants, and a summary of the 70 jury instructions in the case.

Juror Elmer Glazener testified that he created the documents for his personal use from his notes and then passed out copies during deliberations at the request of his fellow jurors.

Glazener acknowledged that he used a Palm Pilot, or hand-held computer, during the trial, but only to play games during breaks.

He said he used it once during deliberations to look up a date and another time to find a telephone number for Delta Air Lines. He also did some calculations on the computer, he said.

Jurors are prohibited from considering any evidence other than what has been presented in court.

In this case, prosecutors contended there was no problem because a five-year calendar and the Delta number were introduced as evidence.

Glazener said he did not access any media reports over the Internet with his computer during the trial. The possibility of such access had been a concern of defense attorneys.

Several jurors testified that the so-called "fugitive documents" were compiled only as a quick reference to help them go to the original source in the massive amount of evidence they had to sift through while deliberating.

Another document, a hand-written timeline of the events leading to Binion's death, was introduced to the jurors during their first deliberations. The timeline, written by jury foreman Arthur Spear Jr. was used when the jurors decided to recommend life in prison with the possibility of parole after 20 years for Murphy and Tabish.

Defense attorneys had noticed that Spear referred to the term depraved indifference on the timeline.

Spear was to take the witness stand today.