Murphy, Tabish appeals outlined in document

Tuesday, Jan. 16, 2001 | 11:09 a.m.

Sandy Murphy and Rick Tabish are appealing their murder convictions on nine issues, including whether prosecutors presented sufficient evidence to prove that the defendants killed Ted Binion.

The issues were outlined in a docketing statement filed by their appeal lawyers, Thomas Pitaro and William Terry, at the Nevada Supreme Court earlier this month.

All of the issues in the 12-page statement, obtained by the Sun, were raised unsuccessfully by the defense during and after last spring's sensational trial.

Harvard University law professor Alan Dershowitz has been actively involved in preparing the appeals, defense sources said. Much of the defense team work so far has involved poring over court transcripts looking for trial errors.

The appeal lawyers have until June to file their formal briefs with the high court.

Chief Deputy District Attorney David Roger, the lead prosecutor at the trial, said this morning that he was confident the convictions will be upheld by the Supreme Court.

"Judge (Joseph) Bonaventure's decisions were well-researched and supported by the facts in the case," Roger said. "I do not expect that their convictions will be overturned."

Murphy, Binion's 28-year-old girlfriend, and her lover, 35-year-old Montana contractor Tabish, were convicted May 19 of killing Binion and stealing his valuables.

On Sept. 15 Bonaventure sentenced Murphy to a minimum of 22 years in prison and Tabish to at least 25 years behind bars. Both defendants are in the Nevada prison system.

Prosecutors contended during the well-publicized trial that Murphy and Tabish pumped the 55-year-old Binion with heroin and Xanax at his home on Sept. 17, 1998, and then suffocated him.

But defense attorneys argued that the evidence showed Binion, a known heroin abuser, died of a drug overdose.

Pitaro and Terry are expected to raise that issue in their appeal briefs, according to the docketing statement.

The lawyers, the statement said, also plan to argue that Bonaventure erred during the trial by allowing the jury to reach its guilty verdicts without being unanimous in how Binion died. The jurors had a choice of convicting Murphy and Tabish of giving the former casino executive fatal doses of drugs or suffocating him.

Pitaro is expected to tell the Supreme Court that Bonaventure should have granted Murphy a separate murder trial from Tabish, who faced additional extortion and kidnapping charges. Murphy's trial lawyer, John Momot, had sought a severance on grounds the extra charges against Tabish prejudiced Murphy's defense.

Bonaventure also should not have allowed prosecutors to present hearsay statements from Binion's conversation with one of his estate lawyers, James J. Brown, the day before the gambling figure died, the appeal lawyers wrote.

Brown testified at the trial that Binion told him to "take Sandy out of the will if she doesn't kill me tonight."

Binion also said: "If I'm dead, you'll know what happened."

Those statements were said to be crucial to proving the prosecution's case.

Pitaro and Terry said Bonaventure erred again by giving defense team members a total waiver to testify at a post-trial hearing about defense claims of ineffective assistance of counsel.

Terry alleged at the hearing that Tabish's trial lawyer, Louis Palazzo, had given Tabish poor legal advice and allowed private investigator William Cassidy to call the shots during the trial against Tabish's best interests.

But Terry was forced to abandon the allegations after Bonaventure gave Palazzo and Cassidy free rein to discuss the defense's innermost secrets, when defending their conduct on the witness stand.

The appeal lawyers said in the docketing statement that they also plan to raise jury misconduct accusations that were tossed out by Bonaventure after the trial.

The accusations are:

Most of the jury misconduct claims were leveled by dissident panel member Joan Sanders after the trial.

Sanders stepped forward to say that she no longer believes Murphy and Tabish had killed Binion.

Her allegations, however, were refuted by fellow jurors.

Pitaro and Terry said in the docketing statement that they expect to again allege that prosecutors should have turned over FBI reports uncovering a mob plot to overdose Binion on heroin months before his death.

Defense lawyers argued after the trial that they might have changed their strategy had they known about the underworld scheme.

But prosecutors insisted they never had the reports. The mob angle, they said, would have conflicted with the defense's other theory that Binion had killed himself.

Bonaventure ended up siding with the prosecutors.

The judge's ruling that declared private detective Tom Dillard an "agent of the state" also will be challenged, the appeal lawyers said.

Prior to the trial, Bonaventure denied a defense request to suppress evidence that Dillard had collected for prosecutors during the murder investigation. Dillard, who was hired by Binion's $55 million estate, had interviewed more than 100 witnesses for police.

On still another issue, Pitaro and Terry said Bonaventure should have allowed the defense to present evidence from an interview with former jailhouse informant David Gomez, who claimed prosecutors involved him in a plot to steal Tabish's confidential trial notes.

Gomez, a three-time convicted felon, had asserted his Fifth Amendment right against self-incrimination and refused to testify about the alleged scheme.

Bonaventure refused to allow the defense to pursue the allegations, which were strongly denied by prosecutors, without hearing directly from Gomez.