Attorney claims DA withheld key facts in killing

Kim Smith

Friday, May 3, 2002 | 9:16 a.m.

Defense attorneys in a 7-year-old murder case are hoping to win the freedom of their client by alleging prosecutors withheld the statement of a key witness at his trial.

Defense attorney Christopher Oram told District Judge Donald Mosley earlier this week that Larry Darnell Bailey is a victim of "systemic misconduct" by the Clark County district attorney's office.

That is why the Nevada Supreme Court granted Bailey a new trial, which is scheduled for February, Oram said.

Chief Deputy District Attorney L.J. O'Neale, who inherited the case from the original prosecutors, said the allegations of misconduct don't survive the "barest scrutiny." The conviction was overturned because of a number of small errors taken as a whole, he said.

Bailey was sentenced to a no-parole life term in August 1996 after being convicted of beating Pizza Hut manager Rennie "Sean" Wells to death on April 21, 1995.

The star witness against Bailey was Donald Green, who worked alongside Bailey and Wells at the Rancho Drive and Washington Avenue restaurant.

Green told jurors that Bailey, then 31, didn't like taking orders from Wells, who was 20. On the day of the slaying, Green testified, he left as Bailey and Wells got into a scuffle after closing hours.

When Green returned Wells was unconscious and Bailey stomped on the man's throat, killing him, Green said.

Green testified he didn't immediately identify Bailey as the killer because he was afraid.

According to news accounts at the time, Green said he came forward "because I came to the conclusion in my mind that Larry must pay for what he did to Sean."

Oram argued during the trial that Green actually killed Wells -- an allegation Green denied at the trial.

"I did not kill Sean and I had absolutely no involvement in the killing of Sean Wells," Green said then. "But I watched and viewed Larry Bailey kill Sean Wells."

Now Oram -- in both court documents and in a hearing this week -- says he would have been able to prove Green's guilt had prosecutors David Schwartz and Scott Mitchell provided him a police statement by Green's ex-wife, a statement he didn't know about until a few weeks ago.

Oram says he learned of the statement when one of his investigators called Kathleen Green in preparation for the new trial.

"Kathleen indicated Don Green had called her on Sunday, April 23, in the evening and told her he was involved in the beating death of Sean Wells," Oram wrote in a recent motion to dismiss the case against Bailey.

Kathleen Green claimed she told detectives what she knew in taped and written statements, but those statements were never provided to the defense team, Oram said.

What makes Kathleen Green's statement more compelling is that a missing Pizza Hut rolling pin was found in the Green home after the slaying, Oram said. A coroner said Wells died of trauma to the head consistent with a blow from a rolling pin.

O'Neale told Mosley that the statement has been sitting in police and prosecutors' files all along, and defense attorneys had ample opportunity to see it.

"That statement, however, contains nothing of the sort that the defense now pretends that it does," O'Neale wrote in response to Oram's motion.

All Kathleen Green said in her statement to police was that she thought her ex-husband was more involved in the murder than he let on, O'Neale told Mosley Monday.

Affidavits signed by Schwartz and Mitchell state they provided the defense attorneys their complete files before Bailey's original trial.

The Metro Police detectives who handled the case, Brent Becker and J. Franks, also signed affidavits stating Kathleen Green never named her husband as a suspect.

O'Neale dismissed Kathleen Green's latest version of events, telling Mosley that they come from an "antagonistic former spouse whose memory is more than a little clouded by personal feelings."

Mosley ordered the attorneys to file additional briefs on the matter and ordered Oram to produce Kathleen Green for an August hearing to testify.

The judge warned Oram, however, that he will urge the district attorney's office to prosecute Kathleen Green should it become clear she is lying.

Oram said it may be difficult to convince Green to attend the hearing. She is so frightened of her former husband that she has changed her name, Social Security number and date of birth to avoid being found by him, Oram said.