Prosecutor stands by jurors in Binion case

Wednesday, Aug. 23, 2000 | 11:19 a.m.

A prosecutor today filed court papers defending the jury that convicted Sandy Murphy and Rick Tabish of killing gambling figure Ted Binion.

"Their verdict was the product of careful and thoughtful deliberation," Chief Deputy District Attorney David Roger said in a five-page brief. "There is no evidence of outside influences permeating the jury deliberations. In sum, the defendants received a fair trial."

Defense lawyers, who contend Murphy and Tabish deserve to be retried because of juror misconduct, also were to file briefs later today.

Following last week's evidentiary hearing, District Judge Joseph Bonaventure had asked both sides to supplement their arguments in writing to help him decide whether to grant a new trial. He has promised a decision on Sept. 8.

Roger said the defense should be prohibited from attacking the verdict on the basis that the legal phrase "depraved indifference," which was not part of the jury instructions, may have played a role in the deliberations.

"The clear import of defendants' allegation is that the jury relied upon the term to reconcile the jury's differing views on the cause of the victim's death," Roger wrote.

"While it is not clear how the jurors used the term during deliberations, the evidence established that the jury did not conduct independent research to define the term depraved indifference. Moreover, the jury did not conduct independent research to supplement the court's instructions.

"The term, if used at all," Roger added, "was part of the jurors' thought processes. The court should respect the privacy of the jury deliberations."

Defense lawyers contend the phrase, which was brought to their attention by dissident juror Joan Sanders, had "infected" the deliberating process.

Sanders said she changed her vote to guilty after hearing a discussion of the term -- which suggests a person can be convicted of murder by being in the presence of someone who dies and doing nothing to save the person.

Both Murphy and Tabish acknowledged to authorities that they were at Binion's home the day he died in September 1998. They contended Binion died of a self-induced overdose, but prosecutors alleged Murphy and Tabish pumped him with heroin and Xanax and then suffocated him.

The majority of the 12 jurors, including foreman Arthur Spear Jr., rebutted the claims of Sanders and said they either never heard the phrase or that it didn't play a significant role in their deliberations.

"A juror must not be allowed to impeach the verdict that was embraced by all 12 jurors in open court," Roger told Bonaventure.

The jurors convicted Murphy and Tabish of killing Binion and stealing his valuables on May 19 following eight days of reviewing evidence in the high-profile case. The panel tied the record in Southern Nevada for the longest period of deliberations.

Bonaventure has set Sept. 15 as the sentencing date for the two defendants.