Article: Binion defense lawyers ignored poll

Tuesday, Feb. 6, 2001 | 11:35 a.m.

Defense lawyers in the Binion murder case ignored poll results that showed they needed a dramatic rally in the end to win the case, a defense team pollster has concluded.

"The polling data gathered at the end of testimony indicated that the defense was likely to lose unless they scored big points in closing arguments or put one or both of the defendants on the stand," Marvin Longabaugh said in an article on his defense team work. He said he hopes to have the article published in the UNLV Law Review.

Both defendants, Sandy Murphy and Rick Tabish, did not take the witness stand before a 12-member jury convicted them May 19 of killing former casino executive Ted Binion.

And many courtroom observers did not give their lawyers, John Momot and Louis Palazzo, high marks in their closing arguments.

"This strategic (polling) information would have enabled the defense to much more ably represent their clients," Longabaugh wrote in the unpublished 63-page article.

But he also conceded: "It is likely that the effective and responsible use of this polling data by the defense would not have changed the verdicts in this case."

Momot and Murphy's appeal lawyer, Thomas Pitaro, and Tabish's new attorney, William Terry, are trying to stop Longabaugh from publishing the results of his research.

"The information included in your publication is the work product of the defense team, and your publication constitutes a breach of the attorney-client privilege," the lawyers told Longabaugh in a two-page letter Friday.

"Further, your publication is a serious breach of your fiduciary responsibility as an agent of the defense team."

The attorneys also said they considered Longabaugh's "basic assertions" erroneous, and they demanded he stop distributing the raw article.

"If we are not in receipt of all originals and all copies previously distributed within 72 hours, further legal action will be instituted, including, but not limited to notification of the appropriate authorities at the (UNLV) William S. Boyd School of Law and the Nevada State Bar," the lawyers wrote.

But Longabaugh, a UNLV law student who owns Magellan Research, a local public opinion company, said Monday the threats won't deter him from getting the article published.

"If they're trying to intimidate me, it hasn't worked," he said. "Nobody has seen anything in there that can be perceived as work product. I've shown it to three different professors."

His attorney, Frank Flansburg, said he also has found no privileged information in the article.

"While (the defense lawyers) may not like some of the information contained in the article and the polls, their dislike does not convert the information into work product or privilege," Flansburg said.

In a copy of his article obtained by the Sun, Longabaugh supported prosecution claims that defense team members were more concerned about drumming up favorable publicity than focusing on the trial.

"Had the defense team spent more time seriously analyzing the numbers and less time pursuing headlines, they would have recognized that they were not performing as well as they had hoped during the prosecution's presentation of its case," Longabaugh concluded.

Early in the trial, Chief Deputy District Attorney David Roger ripped into defense team consultant William Cassidy for releasing "fraudulent numbers" to the media about the progress of the case.

Cassidy, an aide to Las Vegas Mayor Oscar Goodman, a former Murphy attorney, had hired Longabaugh to provide the poll results. Cassidy's company, Trial Consultants of Nevada, aired television ads during the trial asking for the public's input.

"While fraudulent is too strong a term for the results, the numbers were certainly being spun by Cassidy for the benefit of his clients," Longabaugh wrote.

At one point, Longabaugh said Cassidy's claims to the media that the results favored the defense were "disingenuous on several counts."

Longabaugh said Cassidy telephoned him Monday to defend his release of the poll results during the trial.

"He said he was doing what was best for his clients, and he told me I could tell you that," Longabaugh said. "He said he definitely spun the data and selectively released the results for the benefit of his clients."

In an interview with the Sun, Cassidy added: "Were we putting out spin? Yes. Were we lying? No."

Last year, Terry alleged in a failed motion for a new trial for Tabish, that Cassidy had called the shots for the defense during the high-profile case.

Murphy and Tabish, who were lovers, are serving lengthy prison terms for killing the 55-year-old Binion in September 1998. At the time of Binion's death, Murphy was his live-in girlfriend.

Both defendants are appealing their convictions to the Nevada Supreme Court.