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April 19, 2014

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County commission chairman says DA’s witness-payment records raise red flags

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Sam Morris / Las Vegas Sun

District Attorney Steve Wolfson talks during an interview Tuesday, Oct. 29, 2013.

Witness Payment

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Clark County Commissioner Steve Sisolak

A witness payment program operated by the Clark County District Attorney’s Office will be the subject of an extensive audit next year after a Las Vegas Sun investigation revealed the program lacked oversight.

After reviewing documents obtained by the Sun, Clark County Commission Chairman Steve Sisolak said it was clear the District Attorney’s Office wasn’t keeping proper financial records. Sisolak also doubles as chairman of the commission’s Audit Committee, which is made of three commissioners who review audits conducted by the county.

Records obtained by the Sun showed overpayments and underpayments to witnesses, payments to people who did not testify, and that some of the vouchers, which witnesses redeem from the court for cash, were not signed by witnesses.

“There’s obviously some issues with the administration of the program,” Sisolak said. “Lacks the signatures, accountability, the rules being followed. The whole thing.”

The sloppy recordkeeping came to light in October when prosecutors couldn’t tell defense attorneys Dayvid Figler and Dan Bunin how much witnesses in one of their cases had been paid.

Prosecutors and employees from the Victim/Witness Assistance Center, the department within the District Attorney’s Office that oversees the payments in cooperation with prosecutors, insisted any records more than three years old had been destroyed.

Figler and Bunin asked prosecutors why the handwritten records weren’t scanned and were told this was just the way the county government worked.

But that wasn’t true.

After the case wrapped, with the defense winning an acquittal, the Sun learned the records were kept at the County Comptroller’s Office.

After the Sun started asking questions about why DA employees had kept evidence from the defense and, it appears, gave false testimony, District Attorney Steve Wolfson asked the county manager to audit the program.

When KLAS-TV started asking about what happened with the case, Wolfson took the step of ending what some viewed as the most controversial part of the payment program — a longstanding practice of paying witnesses for pretrial meetings with prosecutors. Compensating witnesses for court time and incurred expenses is not unusual.

Since his comments to KLAS, Wolfson has refused interviews with the Sun about the program — a move that surprised several members of the legal community, as a hallmark of Wolfson’s campaign to remain the county’s top prosecutor is his openness with the public, especially about policy changes.

Wolfson three times — including Friday afternoon — declined to speak with the Sun about ending the practice, though he has granted interviews to other news outlets.

“That was three weeks ago, and most of the world has moved on right now,” Wolfson said Friday. "I'm really looking forward to the audit. I think the audit will help all of the people who are involved in these issues."

In his other interviews, Wolfson doubled-down on the ridiculousness of the idea that witnesses could be swayed with $25, the flat fee allowed to be paid to witnesses for appearing in court and the rate prosecutors were using for meetings.

Bunin and Figler have decried Wolfson’s rationale. Witnesses often were paid beyond the $25, including reimbursement for food, mileage and parking.

In fact, when Bunin and Figler first started raising the issue in 2009 after a witness told them she’d been influenced by the payments, unverified transportation was a factor. According to a Las Vegas Review-Journal story at the time, a witness in a robbery case said she used the $25 she got for showing up and the additional $25 given to her for a taxi to buy crack cocaine. She didn’t need a cab to meet with prosecutors, she testified; her boyfriend gave her a ride.

In a Nov. 26 email to Wolfson, Assistant District Attorney Christopher Lalli, who oversees the DA’s criminal division, wrote that Figler was right about how much money is involved in paying witnesses.

“Whey (sic) Dayvid is talking about some witnesses receiving vouchers for as much as $800, that is true. This can happen when a witness is afraid to fly and wants to drive from Denver (as an example). We will pay them their mileage,” Lalli wrote.

After a Nov. 15 story about witness payments, county spokesman Erik Pappa asked the Sun to update the story with a quote from Lalli, saying there was clear oversight and that each payment was monitored. Lalli, however, was not made available to answer questions about individual payments and the Sun refused to print the statement.

Later, in the same Nov. 26 email, Lalli wrote that he disagreed with assertions the program lacked oversight. He remembered getting phone calls asking him to approve mileage. Lalli wrote his objective would be to get the witness to court, whatever the method.

It’s that whatever the method and that whatever the cost mentality, Figler said, that could leave prosecutors vulnerable if the question of witness payments comes back up in criminal trials down the road or appeals of convictions.

“We just don’t know because as open as they say that this practice has been, it sure seems to be shrouded in mysterious applications,” Figler said. “All of which, without full disclosure to defense, leads people to draw only the most suspect conclusions.”

Questions of witness payment improprieties would ultimately need to be decided by a jury, Figler points out, as he and other defense attorneys can’t definitively say whether a payment to a witness was a benefit or not.

“Juries aren’t hearing about this,” Figler said. “That’s the problem here fundamentally.”

Figler said he’s glad witness payment records are now being turned over but points out the records are nearly impossible to understand. They don’t come with receipts, many expenses aren’t broken down and he’s left to make guesses about what a victim-witness advocate or prosecutor has scrawled on a piece of paper.

Bennett L. Gershman, a professor at Pace Law School in White Plains, N.Y., and considered to be one of the nation’s leading experts on prosecutorial misconduct, said the real issue was a lack of transparency. If witnesses are compensated and expenses paid, they should be backed up with receipts that are easily accessible to the defense.

“Any time you behave in a secret fashion and you don't reveal information that might be helpful, it looks worse,” Gershman said. “It looks like you might be covering up something unseemly."

Sisolak said he was baffled not just by the record maintenance but the possibility of mismanagement of funds.

“When you see the shoddy recordkeeping, it raises a lot of questions — and frankly doubts and suspicions,” Sisolak said.

Sisolak wants the audit to verify whether handwritten vouchers match what was being doled out.

He said the committee probably wouldn’t hear the results until the spring.

“This audit will take a while, obviously,” Sisolak said. “It’s going to be a complicated one.”

So what is known about witness payments?

Paying witnesses isn’t unusual. In fact, Nevada law allows it. Witnesses are entitled to $25 for coming to court. Reimbursement for expenses also isn’t unusual. The District Attorney’s Office has an annual budget of $1.2 million to spend on such costs. The office has budgeted close to that amount — or more — since at least 2003. The DA’s Office used about $860,000 of its witness payments budget last year.

Here’s a look at some insights the Sun discovered when it looked into records from three cases: the October acquittal of Gary Miller, whose sexual assault and incest case dated to 2009; the case of Eugene Ross, who is appealing his 2012 conviction of a 2006 robbery-related murder; and the case of Rickey Cooper, accused in a 1980s shooting death of a man at a Las Vegas liquor store, still tied up in appeals.

    • Compensated even when they didn’t testify?

      The Sun found three instances in the Miller case in which people who did not give testimony were paid. All three people were accompanying alleged victims of sexual assault — but the mothers of the alleged victims were also with them. In a statement provided to the Sun through Pappa, Lalli said, “It is also important to provide payments to witnesses so that they can appear at court proceedings, even when it is ultimately determined their testimony is not required.”

    • Money for “support companions”

      One woman from the Miller case was flown to Las Vegas as a “support companion” for a 20-year-old alleged victim of sexual assault. The alleged victim lived in a small Louisiana town and had to drive roughly 65 miles to get to an airport. Her mother lives in Las Vegas and was also a witness in the case. The defense found out the witness was overpaid for mileage when they had an advocate from Victim Witness do the math in court. Records obtained by the Sun state that the mistake came from someone paying the witness $1 for each mile traveled instead of 55 cents per mile, as required by statute. Strangely, the mileage amount comes from multiplying 65 miles times four — indicating that the support companion and the alleged victim took separate cars.

    • Suspicious cab rides

      Figler is appealing Ross’ conviction on several grounds, including the payments issue. Records from this case show payment for two taxi rides. On the documents provided to Figler, it says the witness was paid $52 for two $26 cab rides. Figler wants to know how two taxi rides could possibly cost the exact same amount.

    • Do voucher payments go to the witness?

      When the Sun showed Sisolak the records, he asked why several vouchers were not signed by the witness. In the Miller and Ross cases, several vouchers were not signed. Sisolak wanted to know what would prevent someone from picking up a voucher off the floor and cashing it. According to Mary Ann Price, public information officer for Clark County District Court, when a witness redeems a voucher at the cashier’s window, the witness must show identification and sign the voucher.

    • In this Thursday, May 9, 2013, photo, an Allegiant Air jetliner flies over the the the New York-New York Hotel & Casino after taking off from McCarran International Airport in Las Vegas.

      Who got what and why?

      Sometimes there is only one voucher for several witnesses. This makes it hard to examine how much compensation each person received. Price said that when multiple people are named on a voucher, only one of them must show ID and sign. The support companion for the 20-year-old alleged victim who received money in the Miller case wasn’t named on a voucher. The alleged victim was just given extra money for her companion’s food. It’s possible, Figler said, that defense attorneys could argue that witnesses could be influenced by the DA’s Office offering to fly in friends or family to accompany them to court — especially since Las Vegas is a tourist destination.

    • The controversial meeting practice is old

      While Wolfson has ended the controversial practice of paying witnesses for meetings with prosecutors, the issue could come up in appeals. The practice was quite old. In fact, the practice was looked at in 2000 as a postconviction issue in Cooper’s case. Key witness Donnell Wells later recanted his testimony, saying detectives pulled the eighth-grader out of class and told him he could get roughly $100 for his testimony if it proved useful. Wells said that after he testified, detectives took him to redeem a voucher and then drove him to a mall, where he bought K-Swiss shoes and Levi’s jeans. The voucher pictured above is from that case. It shows Wells received $75 for three days of testimony. Witnesses, regardless of age, are entitled to $25 for each day they are required to attend court.

    • Not every witness gets paid

      The practice of paying witnesses for testimony wasn’t something that happened all the time. It was a sometimes practice, according to an email sent out by Chief Deputy District Attorney Thomas Carroll. The DA’s Office’s policy for compensating witnesses did not specify how to determine who should be paid and who should not. Because it wasn’t a blanket policy and witnesses appear not to have been required to prove they needed compensation, Figler said, defense attorneys might argue that prosecutors decided who should be compensated by considering whether $25 would make a difference to the witness.

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