Risky move could build sympathy

Jeff German, Las Vegas Sun

Thursday, April 20, 2006 | 8:18 a.m.

It was as dramatic a moment Wednesday as you'll ever see in a criminal trial. And also maybe the riskiest.

There was Dario Herrera, the once-powerful Clark County commissioner accused of taking bribes from a strip club owner, choking up on the witness stand, admitting to being unfaithful to his wife, Emily.

Across the crowded federal courtroom, Emily Herrera sat in the first row weeping as her husband berated himself for being "reckless" and "disrespectful" to the woman he had betrayed.

You would have to be emotionally frigid to feel anything other than sympathy for her - and that was the upside of Herrera's calculation to take the stand in his own defense.

Herrera's lead attorney, Jerry Bernstein, said Wednesday that the decision to testify was Herrera's alone. "Dario has wanted to tell his story from the day he was charged," Bernstein said after court adjourned.

That may be true. But choosing to take the stand to tell that story is another issue. Yes, Herrera is charismatic and, like a certain recent U.S. president, he has always believed he could talk his way out of a corner - even one involving sexual peccadillos.

Yet Herrera knew that testifying in the trial would open him to withering cross-examination and would give prosecutors another chance to present the essence of their case, another chance to burn facts into the jurors' minds.

That's why Herrera was noticeably pensive on Monday when co-defendant Mary Kincaid-Chauncey made the surprise move of taking the stand in her defense.

People close to Herrera's defense team conceded that Kincaid-Chauncey's decision to testify put pressure on Herrera to do the same. What would it look like to jurors if she testified and he did not?

So Herrera made the decision late Tuesday to take the risk, hoping his contrition and charm would evoke sympathy from jurors and dilute the prosecution's case. He wanted to give jurors a bigger picture of his life and work as chairman of the County Commission - that he hadn't focused on Michael Galardi's business interests.

The highlight of his first day on the stand came early, when Bernstein steered him to his emotional admission that he had strayed from his wife.

Herrera admitted getting at least one evening of lap dances paid for by the man who allegedly bribed him, Galardi, then owner of Cheetahs topless club.

Herrera conceded that he received oral sex from a Cheetahs bartender at a golf outing paid for by Galardi, who sought Herrera's support on the commission on a host of issues. The former commissioner also acknowledged having sexual encounters with a woman while he was briefly separated from his wife and young son in the summer of 2001.

He blamed his marital failings on his own "selfishness" and "lack of judgment."

The affairs ended and Herrera stopped going to strip clubs after he reconciled with his wife.

"I wanted to be a good husband," he told the jury as he held back tears. "I wanted to be a good father, and that's why I came back."

At least some jurors appeared moved by his admissions.

"There's nothing better than contrition and asking for forgiveness," one attorney close to the case said afterward. "The jurors got a chance to see a totally different Dario."

But perils remain for Herrera today, as Assistant U.S. Attorney Dan Schiess goes to the heart of his cross-examination, revisiting the entire case and replaying wiretaps that allegedly link Herrera to Galardi's bribes.

That's when Herrera's teeter-totter might start moving the other way.