Attorneys from first trial have mixed reactions

Matt Pordum and Jace Radke

Wednesday, Nov. 24, 2004 | 10:06 a.m.

Although the six-week retrial of Sandy Murphy and Rick Tabish for the killing of Ted Binion ended with a not guilty verdict on charges of killing casino figure Ted Binion, the fallout and analysis has only just begun.

Clark County District Attorney David Roger, who successfully prosecuted Murphy and Tabish in their first trial on charges related to Binion's death, said he was "obviously disappointed with the result."

"I feel bad for the Binion family, especially (Ted's daughter) Bonnie Binion," Roger said. "She has had to go through two trials."

But, he added, "I believe in the criminal justice system and we asked 12 jurors to work hard for six weeks and I have to respect their verdict."

The jurors acquitted the pair of killing Binion but found them guilty of trying to steal Binion's belongings.

Roger also said that he thought both the defense and prosecution did fine jobs.

"I tip my hat to the defense attorneys and the effort in which they defended the rights of their clients," Roger said. "I also feel Christopher Lalli and Robert Daskas are very fine prosecutors and did everything they possibly could in this case."

Daskas and Lalli had to deal with several setbacks during the retrial.

District Judge Joseph Bonaventure's ruled against them on several potentially key points. Bonaventure did not let prosecutors call Tabish's ex-wife to the stand, and she had been expected to call Tabish's alibi into question. Bonaventure also did not allow prosecutors to delve into the subject of the defense allegedly providing money to a prosecution witness whose testimony waffled during the re-trial.

Also during the retrial, jurors were not allowed to hear Binion's longtime friend and lawyer Jim Brown testify about a conversation he had with Binion the day before Binion's death. During the first trial Brown had testified that Binion told him to take Murphy out of his will and that if Binion died, Brown would know who killed him.

One of Murphy's former attorneys, Herb Sachs, didn't point to those issues when discussing the reason for the acquittals. He said prosecutors simply didn't have the medical evidence to prove its case.

Sachs said that Dr. Michael Baden's testimony that Binion's death was the result of "burking," which occurs when the mouth and nose are obstructed and someone sits on the chest to prevent the diaphragm from moving up and down, was absurd.

"You could not believe Baden at all," Sachs said. "I've never heard of burking and neither have 99.9 percent of people. There was nothing to support the theory. The prosecutors needed a theory and this was something that Baden came up with."

Sachs said that the whole point of burking, as he understands it, is to kill someone without leaving a mark, but there were marks on Binion, poking holes in the theory.

Sachs said that even though Tabish and Murphy were convicted on the three counts related to Binion's silver cache, Sachs doesn't expect a stiff sentence.

He said Tabish may get a few more years, but expects that it would run concurrently to the time he is already serving. Murphy may get off even lighter, Sachs said.

"I don't think he (District Judge Joseph Bonaventure) intends to give her more time," Sachs said. "I think she will be totally done except for serving probation."

Special Public Defender David Schieck agreed with Sachs that the case boiled down to a questionable cause of death.

"It (the cause of death) is up in the air," Schieck said. "They (the prosecutors) have their experts and we (the defense lawyers) have ours and if there is a question, look at the circumstances. They (the prosecution) needed something more concrete to suggest someone killed Ted Binion."

With questions exactly how Binion died circling in the minds of the jurors, there was too much reasonable doubt to convict, Schieck said.

Schieck said the prosecution in most retrials of "close cases" is often vulnerable to the defense because they are forced to stay the course regarding their original case.

"The state is tied to one position, their hands are tied because this was presented before," Schieck said. If you are the defense you get a chance to come back and plan a second attack on the state's case and they (the prosecution) are stuck with the same case. In a close case a retrial is always more likely to get an acquittal because (as a defense attorney) you can nitpick away at the state's case."

Deputy Public Defender Scott Coffee agreed. Coffee said retrials give defense attorneys a chance to plan better, which in the Binion case was seen in the way the defense attacked the burking theory and also how they proved heroin is not soluble.

Coffee said the prosecution relied too much on circumstantial evidence that required "leaps of faith" by the jurors. For example, the prosecution emphasized that the curtains overlooking the backyard at the Binion home were closed only on the day of Binion's death, Coffee said.

Prosecutors alleged the drapes were closed that day so no one could see Binion's body and Murphy and Tabish inside the home.

But "closed curtains doesn't equal murder" and the defense did a good job of calling witnesses who said they saw them closed regularly, Coffee said.

"The jury clearly did their job and listened to the testimony," Coffee said.

Another lawyer who represented Murphy during her first trial, John Momot, likewise credited the jury with "seeing through" the circumstantial evidence of the prosecution's case and focusing on the strength of the defense's medical expert testimony.

"I feel the defense experts really put the state's feet to the fire," Momot said. "I suspect the jury ended up wanting more medical evidence from the state, but they didn't have any."

Momot also said the acquittal on the murder charges was a due to the fact that this time around Tabish was not also facing kidnapping and extortion charges. Those charges stemmed from the 1998 beating of Leo Casey at a sandpit in Jean.

Tabish is currently serving an 18- to 120-month prison sentence for his conviction in the Casey beating.

During pretrial motions of the first trial Momot said he successfully got the kidnapping and extortion charges dismissed against Murphy, but his inability to get the cases severed caused the additional charges against Tabish to "spill over" against Murphy.

Momot said when the Nevada Supreme Court ruled the charges should have been the subject of a separate trial and granted the co-defendants a retrial he knew the result would be a not guilty verdict for murder.

Momot said Tuesday's verdict was "huge, right on with the (Nevada) Supreme Court opinion."

Tabish and Murphy were convicted of the murder and sentenced to life in prison, but the Nevada Supreme Court overturned their convictions, resulting in the new trial for both Murphy and Tabish.

Momot sees the verdict as a "total vindication" and believes Murphy will prevail in her appeal of the three convictions related to the silver theft because "she wasn't even there (at Binion's silver vault in Pahrump)."

Momot said Murphy's attorney, Michael Cristalli, did a great job in talking directly to the jury and "has a wonderful future ahead of himself." As for Tabish's attorney, J. Tony Serra, Momot said, "Serra is one of my favorite guys, you just know he loves what he does and puts his heart into what he believes."

Defense attorney Philip Singer said the key to Tabish and Murphy being acquitted of murder might have been the odd couple they had as their defense.

"It was a cosmic mixture that made this case work for the defense," Singer said. "Serra brings the dramatics and Cristalli brought the facts and had a boy-next-door quality. Some people were afraid Serra would be too dramatic for Las Vegas, but with Cristalli it all evened out."

"As a former prosecutor you are taught from day one not to do anything flashy," Singer said. "You put your white shirt on and play it straight, call your witnesses, file your motions and lay out the case. I think the prosecutors did everything that had to do. I think maybe the jury wanted something a bit sexier and they found it with Serra."

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