Defense suffers setbacks in efforts for new trial

Tuesday, Aug. 15, 2000 | 11:33 a.m.

Defense lawyers in the Ted Binion murder case suffered losses on two major fronts Monday in their bid to win a new trial for Sandy Murphy and Rick Tabish.

Jailhouse informant David Gomez again took the Fifth Amendment on the witness stand and refused to answer questions about a purported plot by prosecutors to plant him next to Tabish to steal his confidential trial notes.

And following a scathing courtroom attack on Gomez from a prosecutor, District Judge Joseph Bonaventure would not allow the transcript of a taped defense interview with Gomez to be introduced as evidence on the second day of an evidentiary hearing on motions for a new trial.

"As far as this court's concerned, I don't want anything to do with Mr. Gomez," Bonaventure told defense lawyers.

That left the attorneys with little choice but to abandon the informant's unproven allegations.

Then, following Monday's hearing, the Nevada Supreme Court refused to overturn last week's ruling from Bonaventure allowing former defense attorneys and investigators to testify with a total waiver of the attorney-client privilege.

"Having reviewed the petition, we are not persuaded that this court's intervention by way of extraordinary writ is warranted at this time," a three-judge panel headed by Chief Justice Robert Rose wrote.

"Specifically, we are not persuaded that the challenged ruling of the District Court constitutes an abuse of discretion. Accordingly, we deny the petition."

That shut down the defense's claims of ineffective assistance of counsel during the trial, and it meant that Tabish's former lawyer, Louis Palazzo, and Murphy's ex-attorney, Las Vegas Mayor Oscar Goodman, as well as investigator William Cassidy, all were unlikely to take the witness stand today when the the hearing resumed.

Tabish's current lawyer, William Terry, had charged in court papers that Palazzo did a poor job of defending Tabish and was more concerned about protecting the interests of Goodman than his client. He also alleged that Cassidy, a Goodman aide, was calling the shots for the defense behind the scenes.

Terry, who had been seeking the testimony with a limited waiver of the privilege, had told Bonaventure he would not call the witnesses today if the Supreme Court denied his petition.

Murphy and Tabish said last week they did not want a full waiver of the privilege, which would have allowed prosecutors to delve into the innermost secrets of the defense. Murphy and Tabish were convicted May 19 of pumping Binion with drugs and killing him in September 1998.

At the hearing Monday Chief Deputy District Attorney David Roger ripped into the defense for trying to introduce the "false" and "slanderous" claims of Gomez, a three-time convicted felon facing sentencing next month on federal perjury charges.

With Gomez taking the Fifth Amendment, Roger said, he had no way of defending himself against the accusations.

Gomez, a reputed member of the Mexican Mafia, told a defense investigator May 28 that Roger had conspired with jail officials to place him next to Tabish in the same protective custody cellblock to steal the defendant's papers.

But Roger denied any such conspiracy, and he accused Gomez of having psychological problems and a hard time telling the truth.

He also pointed out that Gomez once told a corrections officer that he was to be paid by Tabish to trash the prosecutor.

"There's something wrong that's going on in Mr. Gomez's mind," Roger said.

After Bonaventure said he couldn't "in good conscience" allow the defense to put on testimony to corroborate Gomez, Tabish's parents, Frank and Lani Tabish of Montana, stormed out of the courtroom in disgust.

Defense lawyers, who had several corrections officers waiting in the wings to testify, then opted against calling the officers to the witness stand.

Attorneys, meanwhile, held out hope that Bonaventure still could grant a new trial because of alleged jury misconduct.

But several more jurors, including foreman Arthur Spear Jr., defended their actions in testimony Monday.

Spear said the legal phrase "depraved indifference," did not figure prominently in the jury's eight days of deliberations.

The defense contends the jury applied an improper legal standard when finding Murphy and Tabish guilty of killing Binion. Depraved indifference is not part of Nevada statutes and was not listed on the jury instructions.

But several more jurors Monday said they never even heard the term used in the deliberation room.

Spear also said his fellow panel members worked extremely hard poring over "mountains of information" in the high-profile case.

The foreman and his colleagues also defended their interest in a proposed book deal on their experiences in the case. A dental assistant who has never written a book has been publicizing her efforts to arrange the deal.