Controversy erupts over prosecutors paying witnesses for interviews

By Abigail Goldman

Friday, Feb. 13, 2009 | 4:54 p.m.

A controversy is building at the Clark County courthouse over the district attorney’s office's longstanding practice of paying witnesses for interviews prior to trials.

Several veteran defense lawyers say they were unaware of the practice and believe it could be illegal or, at the very least, unethical. The Clark County Public Defender’s office and the Nevada ACLU are trying to sort out what the implications may be for prior cases in which the payments were not disclosed.

The payments came to light when it was revealed that a witness met with prosecutors for a “pretrial conference” prior to the trial of an attempted robbery and kidnapping with deadly weapon case. The witness was paid $25 for coming to the meeting, plus another $25 for transportation.

Clark County Public Defender Phil Kohn said that in his 16 years as a lawyer in the valley, this was the first time he had heard that prosecutors had been paying witnesses for pre-trial interviews.

Dayvid Figler and Dan Bunin, the defense attorneys representing the defendant (whom the jury found not guilty Thursday) also had never heard of the interview payment practice. And neither have any of their defense attorney friends, or the Nevada ACLU.

The fact that this witness — a 22-year-old woman with a record of prostitution and drug arrests — says she used the $50 to purchase crack cocaine immediately after the meeting with the prosecutor was just icing on the outrage cake for the defense lawyers.

Nevada law does allow attorneys to pay witnesses $25 for testifying during trial — in a courtroom, on the record, with attorneys from either side present. The district attorney’s office has argued that the same law that allows for the trial testimony payments also allows for the pretrial conference payments. But people like Kohn and Figler disagree. And last week, after an employee of the district attorney’s office, who was called to testify during the robbery trial, offered up that same Nevada Revised Statute as evidence the pretrial payments were legally legit, District Judge Michael Villani instructed the jury that the citation in question did not apply to pretrial payments.

Even so, District Attorney David Roger said Friday that his office believes that pre-trial payments to witnesses who have been subpoenaed for trial “is a logical extension of the statute.” He added that Clark County prosecutors have been doing it for at least 22 years and there’s never been anything secret about it.

“I would bet dollars to donuts that the defense does the same thing,” Roger said.

So what’s so bad about giving a witness money to come to a meeting? Critics of the practice say they have two main concerns: 1. Is the money being used as an inducement, or might it sway a person to change their testimony, particularly if they’re called in for multiple meetings, resulting in the total amount of the payment adding up? 2. Why haven’t prosecutors been formally disclosing the payments?

After the crack addict let the cat out of the bag, an investigator for the district attorney's office was called to the stand to testify on Feb. 3 during the trial of Figler’s client.

Here are a couple of excerpts from the court transcript:

Deputy District Attorney: Is it customary for the District Attorney’s Office to set up what’s called a pretrial conference?

Investigator: Yes, it is.

Deputy District Attorney: What is a pretrial conference?

Investigator: A pretrial conference is a time when they can — the D.A.’s office and the witness get together and go over any previous testimony.

Later, the prosecutor asked, “Are there times that a witness is paid for their appearance at that pretrial conference or their expenses getting to and from the courthouse are paid?”

“All the time. Yes,” the investigator answered.

If this does happen “all the time,” critics wonder why they’re first learning of it. Moreover, if people are being paid prior to testifying, paid to come speak with one side of the court, then, Kohn says, it should “at least be an area for cross-examination.” The Nevada ACLU shares this concern.

“We are especially concerned about the failure to disclose, which we believe is a legal obligation,” said Gary Peck, Nevada ACLU executive director.

The controversy over these payments is new, and additional issues are being whispered about every day, as gossip makes the rounds at the Regional Justice Center. The newest concern is whether these payments — if they are, in fact, legally questionable — will have implications for cases already closed, or prisoners sitting behind bars.

What started with a banal robbery case, a boring meeting between an attorney and a crack addict, is starting to seem like much more.

Sun reporter Jeff German contributed to this story.