Experts say jury likely to reconvict Tabish, Murphy

Erica D. Johnson

Tuesday, July 15, 2003 | 11:14 a.m.

Prosecutors are preparing to go forward with a second trial for Rick Tabish and Sandy Murphy after the Nevada Supreme Court overturned their convictions, and some legal experts say the chance the pair will be convicted again is great.

Clark County District Judge Michael Cherry said while reversals such as the one in the Tabish and Murphy case are not uncommon, the outcome of a new trial is usually the same.

"Most are convicted again," said Cherry, who served as the court's spokesman during the trial. "It has happened quite a bit over the years. But this case is one of a kind. It will be interesting to see what the jury will do."

John Wesley Hall, of the National Association of Criminal Defense Lawyers, said it depends on the evidence in the case but that most retrials result in a second conviction.

In cases that end with a hung jury, retrials end in convictions about 90 percent of the time, he said.

"Generally it's true," he said. "The prosecution learns where the holes are in their case and they patch them up. They're just going to make their case better. That's a certainty."

The Supreme Court overturned the murder, robbery and burglary convictions of Murphy and Tabish in casino mogul Ted Binion's 1998 death and ordered a new trial for both defendants.

District Attorney David Roger, who prosecuted Tabish and Murphy's case himself, said the court is expected within the next few weeks to send the case back to state court to set a trial date, he said.

"I'm obviously disappointed with the Supreme Court's decision to reverse the conviction," he said. "But that's our system of justice and we have to accept their decision."

The ruling came on the heels of another decision by a district judge to reverse the conviction of 23-year-old Jessica Williams, who was convicted of driving while under the influence and causing the collision that killed six teenagers.

Prosecutors have appealed that decision and a new trial for Williams has been put on hold while the high court decides whether her conviction will stand.

Though reversals on convictions are rare, legal experts say they do happen in Nevada.

The Nevada Supreme Court reversed convictions and ordered new trials in only 59 out of 892 criminal cases it heard on appeal in 2002, according to the court clerk's office. The court upheld 650 criminal convictions last year.

"The vast majority of our cases are affirmed on appeal," Roger said.

Within the last few months, at least two cases saw convictions after retrials in Clark County courtrooms.

Last week former Nellis Air Force Base Airman Brandon Parish was sentenced a second time for first-degree murder by child abuse in the death of his girlfriend's 18-month-old daughter.

A jury had convicted Parish of the same crime in 1998, but that conviction was overturned due to faulty jury instructions. The second jury also handed down an identical sentence of life in prison with parole possible after 20 years.

Convicted killer Larry Bailey, 37, was granted a new trial after a jury found him guilty of beating Pizza Hut manager Rennie "Sean" Wells to death on April 21, 1995.

After a retrial last month, Bailey was convicted of second-degree murder. He is scheduled to be sentenced before District Judge Donald Mosley next week.

In the Binion matter, the Nevada Supreme Court ruled that presiding District Judge Joseph Bonaventure should not have allowed Tabish to be tried on extortion charges relating to the beating of sand pit operator Leo Casey two months before Binion's death.

Roger said he believed the counts were properly joined because the extortion related to motive.

"It was our position that the Leo Casey extortion and the rights of the Jean, Nevada sandpit were the motive for Ted Binion's murder," he said. "Tabish needed money to run the sandpit and Binion was the source of the funds."

The court found that Bonaventure also improperly allowed hearsay evidence into the trial that should have been precluded.

William Dressel, a retired judge and president of the National Judicial College in Reno, said severing counts in criminal cases is an issue looked upon very strictly by appellate courts because it is "a judgment call" on the part of the trial judge.

"It's a gray area," he said. "Anytime you get multiple defendants and multiple counts, it is an area that's going to be scrutinized."

Dressel said appeals are needed because many of the decisions judges make in the trial process are discretionary.

Finding an impartial jury for the new trial could be a lengthy and difficult process in a high profile case such as Tabish and Murphy's, Cherry said.

Some potential jurors could be new to Las Vegas and unfamiliar with the case, but most Clark County residents have been exposed to six years of news coverage, he said.

Roger said there was "substantial" coverage in the first trial, "yet we were able to identify twelve jurors to sit in the case."

"There is no doubt in my mind that we'll be able do that again," he said.

Unlike Tabish and Murphy's convictions, Williams' conviction was reversed at the District Court level.

District Judge Michael Douglas overturned Williams' conviction on six counts of driving under the influence of a controlled substance after a jury found her guilty in the 2000 accident.

A new trial has been put on hold while the Nevada Supreme Court decides if the decision should stand.

Nelson said he has no problem proceeding with a new trial.

"I did my job, the jury did its job and the judge, whether he ruled for or against us, did his job," said Deputy District Attorney Bruce Nelson, who helped prosecute the case. "I have no doubt that Jessica Williams is guilty and if we have to prove that again we'll do it."

Still, retrials can be difficult, particularly if many years have passed since the initial conviction, he said. In addition to locating witnesses, he said, a retrial can take a toll on victims' family members.

The Nevada Supreme Court had already upheld Williams' conviction on appeal when defense attorney John Watkins filed a motion for post conviction relief before Douglas, citing new reasons the conviction should be overturned.

Watkins successfully argued that the jury convicted her after prosecutors argued that she had the byproduct of marijuana in her system. That byproduct, though, was not on the state list of prohibited substances and the judge threw out the conviction because of that.