Murphy, Tabish appeal to high court

Thursday, July 12, 2001 | 11:11 a.m.

Attorneys for Ted Binion's convicted killers, Sandy Murphy and Rick Tabish, sent lengthy appeal briefs Wednesday to the Nevada Supreme Court in a bid to win new trials for the imprisoned defendants.

The briefs, each 60 pages long, spent much time attacking the conduct of presiding District Judge Joseph Bonaventure and the 12 jurors who found Murphy and Tabish guilty May 19, 2000, of killing the wealthy gambling figure.

Defense lawyers also accused prosecutors of presenting insufficient evidence during the sensational seven-week trial to convict the defendants.

Chief Deputy District Attorney David Roger, the lead Binion prosecutor, said he was confident the convictions will stand after the high court reviews the case. He has 60 days to respond to the defense allegations in writing.

"The defendants have the benefit of very fine legal minds, and the briefs are very well drafted," Roger said this morning." However, I have the utmost faith in the legality of Judge Bonaventure's decisions.

"I believe that the convictions will be affirmed.

Murphy's brief was filed by Las Vegas attorney Herb Sachs, but Harvard University law professor Alan Dershowitz and a lawyer in the New York firm of his brother, Nathan Dershowitz, were listed as "Of Counsel," or consultants on the brief.

Alan Dershowitz, who has been involved in some of the country's biggest murder cases, reportedly received a six-figure retainer from Murphy's millionaire benefactor, William Fuller, to help with the appeal.

Murphy's brief accused Binion's family and $55 million estate of mounting a "successful effort to demonize and marginalize" her prior to her June 1999 arrest with Tabish on charges of killing Binion at his 2408 Palomino Lane home.

"The Binion family and those loyal to or financially beholden to the Binions launched a full-scale effort to portray Murphy, a Las Vegas outsider, as a conniving gold-digger and ultimately as a cold-blooded murderer," Sachs wrote.

Binion, a 55-year-old disgraced co-owner of the Horseshoe Club, which was founded by his father, the legendary Benny Binion, had been living with the then 26-year-old Murphy for three years at the time of his Sept. 17, 1998, death.

Murphy, who had met Binion while dancing topless at Cheetah's adult nightclub, and Tabish, a married Montana contractor who had become her new lover, were convicted last year of pumping Binion with heroin and Xanax and then suffocating him.

Murphy now is serving a minimum of 22 years in prison, and Tabish is spending 25 years behind bars.

"After hearing 115 witnesses and deliberating for eight days, the jury returned a guilty verdict, but there remain grave questions whether it convicted an innocent young woman," Sachs wrote. "The Binions are powerful people in the state, and they brought substantial resources to bear against Murphy.

"Ultimately, the state of Nevada brought its resources to bear against her, too, in a criminal prosecution which attracted huge public attention. The trial was long, but it was infected with error."

In his brief, Tabish's lawyer, William Terry, said prosecutors failed to present any witnesses who testified that Tabish was at Binion's home the day he died.

"No physical evidence was presented that ties Tabish to Binion's residence at the time of Binion's death," Terry wrote, adding that Tabish called several alibi witnesses.

Sachs accused prosecutors of presenting a "multiple choice prosecution" to the jurors.

"... the state hedged its bets, floating a number of vague and contradictory theories as to what had occurred," he said.

Clark County Chief Medical Examiner Lary Simms, who performed the autopsy on Binion's body, testified that Binion died of a forced heroin and Xanax overdose.

But well-known New York pathologist Michael Baden told the jurors that Binion was the victim of burking, a 19th Century-invented method of suffocating someone without leaving marks on the body.

"In this highly unusual prosecution, the state's own experts disagreed about the cause of Binion's death, a fact which by itself raises reasonable doubt," Sachs wrote.

Defense experts testified that Binion either committed suicide or died of an accidental overdose.

Sachs said that Bonaventure erred during the trial by refusing to instruct the jurors to reach a unanimous decision about how Binion died. The jurors were told they could return a guilty verdict if they believed Binion died of a forced drug overdose or was suffocated.

Terry charged that Bonaventure committed misconduct in the case by giving the panel members requested photocopies of 22 of the 70 deliberating instructions and not telling lawyers about it. All 70 instructions, Terry said, should have been treated equally.

"Not only did the trial in the instant matter ignore its duty to prevent juror misconduct, but the trial court itself engaged in misconduct by omission and failure to notify both parties," Terry wrote.

"By engaging in misconduct, the trial court promoted and encouraged further juror misconduct."

Terry said the defense uncovered a "disturbingly widespread" amount of juror misconduct in the case that resulted in a "verdict tainted to its core."

He said the jurors were exposed to "extrinsic information" and "erroneous documents" not placed into evidence during the trial.

The term, "depraved indifference," a rare legal standard not used in Nevada, was wrongly introduced during deliberations, and one juror had the benefit of a Palm Pilot, a hand-held computer that could have provided him with a wealth of information not relevant to the case, Terry said.

The verdict, Terry added, also may have been unfairly influenced by a book deal nine of the jurors were putting together.

Terry criticized Bonaventure for denying a defense motion for a new trial based on allegations prosecutors failed to turn over FBI reports detailing a plot by underworld figures to overdose Binion with heroin.

"The fact that organized crime planned to kill Binion and make it appear like a heroin overdose would have been especially pertinent to the defense in this matter because the defense contended throughout the trial and evidence suggested that Binion's death was a result of intentional or unintentional heroin overdose," Terry said.

Bonaventure also abused his discretion by not allowing the defense to scrutinize the role of private detective Tom Dillard in the homicide investigation, Terry said.

Dillard, who investigated Binion's death for his estate, worked closely with prosecutors and homicide detectives.

Sachs charged that Bonaventure should not have allowed Binion's friend and estate lawyer, James J. Brown, to testify about a prejudicial statement Binion made the day before his death.

Brown testified that Binion told him, "Take Sandy out of the will if she doesn't kill me tonight. If I'm dead, you'll know what happened."

Bonaventure should have ruled that statement hearsay and inadmissible as evidence, Sachs said.

Sachs also said that Bonaventure should have granted Murphy a separate trial from Tabish.

Murphy's defense, he said, was harmed by charges that Tabish participated in an assault on Las Vegas businessman Leo Casey two months before Binion's death.

Bonaventure dismissed the charges tying Murphy to the assault prior to the start of the trial.

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