Story places Tabish at Binion house

By Matt Pordum (contact)

Tuesday, Nov. 30, 2004 | 11:07 a.m.

Rick Tabish's ex-wife told a Metro Police detective Tabish called her from Ted Binion's home on the morning of his death saying Binion was "taking a bunch of pills and he (Tabish) was going to get out of there before he (Binion) overdosed."

The Clark County jury that acquitted Tabish and Sandy Murphy of murdering Ted Binion never knew anything about the statement Mary Jo Jackson gave police because of a ruling by District Judge Joseph Bonaventure.

Bonaventure ruled the prosecution couldn't call Jackson to the stand to rebut Tabish's testimony because they were married at the time.

Tabish said he was at All-Star Ready Mix, a North Las Vegas concrete company, from sometime between 8 a.m. and 8:30 a.m. until about noon on Sept. 17, 1998.

Clark County Medical Examiner Dr. Lary Simms and Dr. Michael Baden testified Binion died between 8:30 a.m. and 1 p.m. on Sept. 17, 1998.

Jackson told police that Tabish told her he was at the Binion house that morning.

During the retrial prosecutors said Jackson, who divorced Tabish in July 2000, should be allowed to testify whether Tabish's alibi is consistent with what she knows.

After reviewing Jackson's statements made to police in the presence of her attorney and new husband, Doug Jackson, it becomes clear Jackson's accounts of Sept. 17, 1998 are anything but consistent with the recollections of her ex-husband and two of his former employees who provided his alibi in their testimony.

In a "quick phone call" from Tabish at 10 a.m. the day of Binion's death Jackson said Tabish called her from Binion's home.

"He (Tabish) said that he, he was just leaving Ted Binion's house and that Ted (Binion) had been taking a bunch of pills," Jackson said. " I don't recall if he (Tabish) said the name of what the pills were or not; if he had, I probably wouldn't have known it anyway, but he said he (Binion) was taking a bunch of pills and he was going to get out of there before he overdosed"

Jackson said a day earlier Tabish called her explaining he was going to spend the night at Binion's home and with Murphy's help stage an intervention of sorts to help Binion overcome his addiction to heroin.

"He (Tabish) said that he was going to go to Ted's (Binion) house or going to help Ted," Jackson said in her statement. "Him (Tabish) and Sandy (Murphy) were going to help Ted try and get off the heroin and ... Ted wanted them to put him in a room in the floor of the garage and keep him away from the heroin."

Jackson said in regard to Tabish allegedly being at Binion's home on the morning of his death he told her he "didn't like to talk about anything at anytime cause he was always afraid somebody was listening to him and he didn't like me to talk on the phone about it, it was like I wasn't supposed to talk to anybody because someone was going to hear or someone."

Tabish's attorney, Joseph Caramagno, in response to Jackson's statement said "hell hath no fury like a women scorned, I never seen a better example for the saying to be applied."

Caramagno said Jackson's motive is "blatant" as she is trying to terminate Tabish's parental rights in Family Court in Missoula, Mont. Jackson and Tabish had two children together.

In her statement Jackson acknowledged she had filed a termination of parental rights suit against Tabish.

Caramagno said the statement was really a non-issue because Bonaventure ruled it wasn't admissible under any of the marital privilege exceptions as stated in Nevada law.

Although prosecutors contend the inconsistencies between Jackson's statements and those of Tabish and his former employees should have allowed Bonaventure to waive the spousal privilege, under Nevada law, however, it's unclear whether Jackson could have testified without Tabish's consent.

The state's spousal privilege law states, "a husband cannot be examined as a witness for or against his wife without his consent, nor a wife for or against her husband without her consent. Neither a husband nor a wife can be examined, during the marriage or afterward, without the consent of the other, as to any communication made by one to the other during marriage."

Under NRS 49.295 there are only a limited amount of exceptions to spousal privilege.

But Clark County District Attorney David Roger said he believes another exception could occur if " a defendant takes the stand and lies" then an exception to the spousal privilege can be made "because we don't want people lying in court."

Roger, however, said while the issue has been addressed in some neighboring states such as Arizona, the Nevada Supreme Court "hasn't addressed the issue."

A ruling issued by the United States Supreme Court in 1971, however, might have provided the legal precedent necessary for the prosecution's argument to admit Jackson's testimony.

In the case of Harris v. New York the nation's high court affirmed the conviction of a man who was convicted of selling heroin to an undercover police officer. The case dealt with whether it was proper for statements the accused made prior to being issued his Miranda warning to be used to challenge the different story he offered when he took the stand.

In the affirming decision then Chief Justice Warren Burger said "every criminal defendant is privileged to testify in his own defense but that does not include the right to commit perjury."

Although the Harris case dealt with the protection of Miranda rights, it could be argued the right to spousal privilege could be substituted in its place. Under this hypothetical the question of whether Tabish's spousal privilege outweighed the possibility he perjured himself on the stand would have been at issue as to whether to allow Jackson's statements in.

Because the argument on the issue and Bonaventure's decision were held in chambers and has been sealed, questions as to how and why the jury never heard Jackson's statements will remain unanswered.

Caramagno stood by Tabish's alibi.

"He (Tabish) was at the wash plant," Caramagno said. "Three guys came forward who had no motive to lie testified Tabish was at work the day of Binion's birth. There is a major difference between their testimony and statements and that of her coming forward six years later."

Caramagno said Tabish "denies talking to her on either occasion." He said his client did try to call her at work the day of Binion's death, but he never got a hold of her.

In addition to discussing Tabish's whereabouts the day before and of Binion's death, Jackson also alleged her ex-husband took two bags of Binion's silver to Chicago prior to his death during the summer of 1998.

"He (Tabish) told me he took, I want to say two bags of silver and he said that he wanted to take it to Chicago to show the boys an example" of the kind of silver Binion had in his vault.

Jackson said she never met anyone from Chicago, but said Tabish always referred to one of the men from Chicago as "Sam."

Caramagno called Jackson's allegation Tabish took Binion's silver to Chicago "a total fabrication," adding that "Rick never went to Chicago and he never stole any silver from Ted Binion."