Murphy, Tabish allowed to probe witness payments

Monday, Aug. 23, 2004 | 9:24 a.m.

Attorneys for Rick Tabish and Sandy Murphy were granted the right on Friday to explore the circumstances under which witnesses in the 2000 trial in which the two were convicted to killing casino figure Ted Binion were paid rewards.

It was one of many issues District Judge Joseph Bonaventure decided Friday during a six-hour hearing in the case.

Murphy, who lived with Binion, and Tabish are accused of the September 1998 murder of Binion, the former part-owner of Binion's Horseshoe who was found dead in the Las Vegas home he shared with Murphy.

Tabish and Murphy face a new trial in the death Oct. 11 after the Nevada Supreme Court overturned the convictions.

In the first of two minor victories, the Tabish lawyers, led by J. Tony Serra, got the right to hearings on Sept. 10 to "explore the criteria used" by the Binion estate to pay roughly seven witnesses a share of $100,000 after the first trial concluded. Serra implied the prosecution may have had a hand in "paying witnesses for their testimony."

"That (paying witnesses) stinks, that's not right," Serra said. "It can't be legal. I'm strong on morality in this area. If I paid a witness, you would put me in jail. They paid several witnesses."

Deputy District Attorney Christopher Lalli said there was "absolutely no need for a evidentiary hearing" because the state had no role in the payments made to witnesses. Lalli said it was well documented in a letter written by Jack Binion in which he stated he relied on the expertise of Harry Clairborne to determine what witnesses deserved a reward. Clairborne has since died.

"Blame it on the dead person," Serra replied. "That's suspicious."

Lalli said the witness payments made by the Binion estate were not payments for testimony and were made after the trial.

Although Bonaventure said he didn't share Serra's sentiments on the subject, he did grant the hearing.

Serra also convinced Bonaventure that enough questions remained as to how and why the shirt Binion was wearing at the time of his death was "lost or destroyed" as he successfully argued for an evidentiary hearing on the issue.

Serra said the shirt was a crucial part of the case because the prosecution alleges the buttons from shirt were the cause of the abrasions found on Binion's body.

At the first trial Dr. Michael Baden, a well-known forensic pathologist who was the chief medical witness for the prosecution, testified that circular red marks on Binion's chest were the result of pressure from someone trying to suffocate him by an 18th-century method called burking, in which pressure is put on the chest as the nose and mouth are covered.

"Was it (Binion's shirt) ordered destroyed?," Serra said. "Or was it involuntary? Without the shirt Dr. Baden shouldn't be able to testify the abrasions came from a button."

Serra said the only way to effectively rebut Baden's theory would require a medical expert to examine the shirt.

Lalli argued the defense must show bad faith existed in how the shirt was lost, that the defendants "suffered undue prejudice" and that the importance of the shirt was realized before it was lost.

Lalli said because the initial coroner's report indicated Binion's death was the result of a drug overdose, the shirt was not secured in the same manner it would have been if the coroner had determined a homicide was the cause of death.

In granting the evidentiary hearing Bonaventure said he had to "put an end" to the debate over how the shirt was lost and scheduled what he termed a "brief" evidentiary hearing to resolve the issue.

Serra said he understood the hearings would not necessarily change the course of the case.

"I'm satisfied, but not jubilant," Serra said. "This was a good day, but not a great one."

Bonaventure turned down defense motions to dismiss the case because of prosecutorial misconduct and another to exclude potentially damaging testimony against Murphy.

Bonaventure said the prosecutorial misconduct allegation "offends me, and I don't see it here."

Murphy's attorney, Michael Cristalli, had made the accusation, saying the testimony of witness Steven Kurt Gratzer had been mishandled.

The defense produced a new affidavit from Gratzer stating that Murphy didn't know about a plot to kill Binion and charging that the DA's office withheld that information because it would have helped Murphy.

Cristalli also contended in the motion, which sought to dismiss the charges against Murphy, that Gratzer's testimony is clouded by his acceptance of $20,000 in reward money offered by Binion's estate.

Attorney William Cohan, a new face to the Murphy legal team, argued the motion for prosecutorial misconduct on Friday making it clear the allegations were not against Lalli or Deputy District Attorney Robert Daskas, but against the prosecutors of the first trial.

Those prosecutors, David Roger, now Clark County district attorney and David Wall, now a district judge, failed to introduce the time of death determined by a coroner's office investigator, tampered with phone records from Barbara Brown to the Binion home, assisted Binion estate in paying witnesses for testimony, failed to release photos of Binion's sternum abrasions and doctored tapes of phone conversations of Gratzer, Cohan alleged.

Lalli saying "we have nothing at all to hide" kept his composure as he refuted each claim one by one.

If anything the claims of prosecutorial misconduct may have ultimately hurt the defense as one of their allies may now have to appear before Bonaventure to explain his involvement in the case.

Lalli brought up the questionable actions of John Prendeville, who prosecutors allege has acted as an agent of wealthy octogenarian William Fuller, who has been a benefactor of Murphy. Prosecutors allege Prendeville tried to manipulate the testimony of three witnesses or potential witnesses: Gratzer, Avery Church and Jason Frazer.

Prosecutors allege Prendeville promised to pay Gratzer $35,000 toward his legal fees in criminal cases in Montana.

Additionally Prendeville is accused of trying to sway Fraser, a prosecution witness in April 2001, saying in an answering machine message "We'll do whatever we can to make this work out for the better all around. But obviously things will improve there back to you back in Montana."

Prosecutor allege Prendeville promised a favor if Church would provide information he wanted to hear about Murphy and Tabish.

Bonaventure said he would "like to get to the bottom of Prendeville" and told Lalli to make a motion and "get Prendeville served" so he can explain his alleged actions to the court.