Binion killers denied retrial

Friday, Sept. 8, 2000 | 11:24 a.m.

District Judge Joseph Bonaventure today refused to grant a new trial to Sandy Murphy and Rick Tabish, who were convicted May 19 of killing wealthy gambling figure Ted Binion.

Murphy, Binion's 28-year-old girlfriend, and Tabish, her 35-year-old lover, looked solemn as Bonaventure read his 12-page decision in court.

Bonaventure found no merit to any of the claims advanced by defense lawyers, including allegations of misconduct on the part of prosecutors and the jury.

Both convicted defendants face sentencing next Friday. The 12-member jury that convicted Murphy and Tabish already recommended life in prison with the possibility of parole after 20 years on the first-degree murder charge.

Bonaventure found that the defense was not harmed when prosecutors failed to give them FBI reports about a mob plot to kill Binion.

Defense lawyers had tried to persuade Bonaventure that prosecutors had an obligation to provide them with the FBI reports that alleged underworld figures had schemed to overdose Binion on heroin months before his Sept. 17, 1998, death.

The lawyers suggested that Murphy and Tabish may have changed their trial strategy had they known about the 1997 underworld scheme to kill Binion with heroin, his drug of choice.

But Bonaventure today said the defense was well aware of the mob plot before the trial and should have tried harder to obtain the reports on its own. He said he was convinced that prosecutors did not have the reports.

Additionally, Bonaventure said: "As evidenced by the testimony at the post-trial hearing, the defense has always contended that Ted Binion's death was suicidal or accidental and that the defendant Sandra Murphy was present when Ted Binion died. It would seem that such a memo would fly in the very face of the defense's entire case."

Bonaventure also said that, had the defense obtained the FBI reports and used them at the trial, it would have "opened the door for the state to bring in evidence of Mr. Tabish's alleged ties to organized crime."

At a three-day hearing last month, Chief Deputy District Attorney David Roger pointed out that any acknowledgment by Murphy and Tabish that Binion had met with foul play would have dragged them into a broader conspiracy with the mob.

Murphy's attorney, Gerald Scotti, however, charged that the defense should have had an opportunity to explore the mob angle, which suggests others in Las Vegas wanted Binion dead.

Scotti contended prosecutors should have turned over several FBI reports documenting the mob plan to kill Binion. FBI agents had obtained information about the scheme from interviews with two men who pleaded guilty to conspiring to kill Binion's friend, Chicago underworld figure Herbie Blitzstein.

The reports, which were written in April 1999, said the mob associates convicted in Blitzstein's Jan 6, 1997, slaying, wanted Binion dead so they could steal what was thought to be millions in cash hidden away at Binion's home.

Defense lawyers, Scotti said, didn't learn about the reports until after the trial.

Roger, however, insisted that he didn't know about the reports either and that he turned over everything he had about the scheme to defense attorneys.

Sparks also flew in court last month over defense claims of jury misconduct during the trial.

Murphy's other lawyer, John Momot, charged that the jury was "infected" when the legal phrase "depraved indifference" was introduced on the sixth day of deliberations.

That phrase -- which the lawyers suggested meant someone could be found guilty of murder if they simply were in the home at the time of Binion's death -- led at least one juror to convict Murphy and Tabish, the lawyers said.

That juror, Joan Sanders, went to the defense with her concerns about what had happened inside the deliberating room.

Scotti said the phrase, which was not included in the jury instructions, was improperly introduced to the jurors.

"It had the effect of changing minds," he said. "It wasn't supposed to be there."

But most of the jurors who testified during the hearing said they never heard the two words. And the foreman, Arthur Spear Jr., said the theory behind depraved indifference played little if any role in the jury's deliberations.

And Bonaventure today agreed.

"The fact that other jury members found it helpful to use such a term did not adversely affect the jurors impartiality, nor did it lighten the prosecution's burden of proof and most importantly, it did not prejudice the defendants," Bonaventure said.

"Even assuming that the term depraved indifference played any role in the deliberations ... in a larger sense it was no more than a small item of background experience, possession of which is an important highly valued and expected strength of a jury."

Chief Deputy District Attorney David Wall had argued last month that defense lawyers should be prohibited from attacking the jurors over the phrase because it was part of their mental process, which is protected by Nevada law.

Scotti, however, suggested that the jurors weren't being totally truthful with Bonaventure on the witness stand because they were trying to preserve their guilty verdicts so they could strike a book deal.

Wall defended the jury's conduct, saying it was one of the hardest working panels ever in Southern Nevada.