Columnist Jeff German: Judge turns tables on prosecutors

Friday, Oct. 22, 2004 | 11:09 a.m.

We haven't heard prosecutors complain in court, but they have to be concerned about the way District Judge Joseph Bonaventure is handling the sequel in the Ted Binion murder case.

Bonaventure was burned last year by the Nevada Supreme Court, which tossed out the 2000 murder convictions of Sandy Murphy and Rick Tabish. The court found that Bonaventure allowed prosecutors to present evidence in the first trial that harmed the ability of the defendants to get a fair shake.

This week Bonaventure did the defense a huge favor during the bizarre testimony of Steven Kurt Gratzer, an uncooperative prosecution witness.

Gratzer, a childhood friend of Tabish from Montana, was given immunity to testify that Tabish tried to involve him in a plot to kill Binion in 1998. The jury at the first trial had trouble believing Gratzer. But he was corroborated by other witnesses, and the jury wound up convicting Murphy and Tabish. Gratzer's testimony also was good enough to earn him $20,000 in reward money from the Binion estate.

This week, however, Gratzer was a disaster for prosecutors. He rambled, his memory was bad and he admitted being on several prescription drugs. Worse, he changed the substance of his testimony from the previous trial, suggesting Tabish might have been joking about his desire to kill Binion.

Prosecutors knew why Gratzer was giving them trouble. They had picked up information months ago that the Murphy defense team had been cozying up to Gratzer. This was being done primarily through John Prendeville, an associate of William Fuller, Murphy's wealthy 80-something benefactor.

In August prosecutors informed Bonaventure that they believed Prendeville was involved in an effort to pay Gratzer's legal fees ($35,000) in unrelated criminal cases in Montana. Prendeville is not a lawyer or a licensed private investigator, but he has described himself in court documents as a member of Murphy's defense.

Bonaventure later told prosecutors that, if Gratzer became hostile during the retrial and substantially changed his testimony, he would allow them to question Prendeville about any defense attempts to influence Gratzer.

Sure enough, this week Gratzer turned on the prosecution. But he wasn't the only one. The judge did, too.

Outside the presence of the jury, Bonaventure said he was bothered by Prendeville's presence in the case, calling him a "shadowy figure." The judge looked like he wanted to solve the Prendeville mystery.

But to the prosecution's surprise, Bonaventure ruled that the door had not been opened during the defense's cross-examination of Gratzer to allow the prosecution to call Prendeville to the witness stand.

Bonaventure came to that conclusion even though Tabish's lead lawyer, J. Tony Serra, appeared to have indeed opened the door. Serra questioned Gratzer about an affidavit critical of prosecutors that Prendeville had obtained from Gratzer.

When Gratzer left the witness stand this week, the jury was left wondering why a key prosecution witness was undermining the prosecution's case.

And that probably left prosecutors wondering whether this is their turn not to get a fair shake from Judge Bonaventure.