Man convicted in attempted murder case may be freed

Molly Ball

Tuesday, Dec. 28, 2004 | 11:17 a.m.

When Avery Church's conviction on charges of attempted murder, kidnapping and robbery was overturned by the Nevada Supreme Court in August, his defense lawyer and prosecutors started preparing for a new trial.

But on rereading the reversal, they found that the state's highest court didn't order a retrial. In a rare move, the court totally reversed the verdict, exonerating Church, 27, permanently of the charges, according to the 2-1 decision by a three-judge panel.

"This case no longer exists pursuant to the Nevada Supreme Court," Church's lawyer, David Amesbury, told District Judge Donald Mosley on Monday. "There will not be a retrial."

Church must now be set free, Amesbury contended. Church is currently being held on $500,000 bail.

Mosley said he would wait to see the necessary paperwork from the Supreme Court.

A reversal without remand, as it is known, is so rare that the prosecutor, Chief Deputy District Attorney Christopher Laurent, told the court it must have been a mistake -- that the Supreme Court must have "forgotten to put down that it was remanded for trial."

The Supreme Court confirmed Monday that a remitter -- a document handing off the high court's jurisdiction on the case -- was being sent today.

The reversal was ordered by state Supreme Court Justices Bob Rose and Michael Douglas. Justice Bill Maupin dissented, saying the error in Church's trial was harmless so the conviction should be affirmed.

Earlier this month, prosecutors' petition for the Supreme Court to rehear the case was denied. Prosecutors then applied for an en banc hearing -- an airing of the case before all seven of the Nevada Supreme Court justices.

In his petition for en banc hearing, Chief Deputy District Attorney Giancarlo Pesci noted that the court's decision doesn't say whether the case should get a new trial.

No ruling has yet been made on the en banc request. Such hearings are seldom granted.

To Amesbury, the Supreme Court's decision signaled how egregious the errors in Church's trial were. Church claimed his conviction was unfair because prosecutors wrongly introduced evidence. District Judge Joe Bonaventure presided over the trial in which Church was convicted and sentenced to eight years in prison for allegedly beating and torturing a man in a 1999 dispute over money in southeast Las Vegas.

Prosecutors in the case had said they wouldn't introduce tapes of jailhouse conversations between Church and his girlfriend unless the girlfriend testified. The girlfriend never testified, but the prosecutors and the judge let the jury hear the tapes anyway.

Church played -- or tried to play -- a minor role in the high-profile trial of Rick Tabish and Sandy Murphy. While in prison, Church allegedly told federal authorities he had information that could clear the pair.

Last month a Clark County jury acquitted Tabish and Murphy of murdering casino heir Ted Binion but found them guilty of charges related to the attempted theft of Binion's cache of silver.

During the six-week trial featuring more than 150 witnesses, Church was never called as a witness or even referred to by the prosecution or the defense.

Prosecutors would later allege that a member of the defense team offered Church an unnamed favor in exchange for "information he wanted to hear" about Murphy and Tabish.