Sam Morris / Las Vegas Sun
Friday, Nov. 15, 2013 | 2 a.m.
Clark County District Attorney Steve Wolfson no longer supports his office’s controversial practice of paying witnesses to meet with prosecutors. He’s ending the program and calling for an audit of witness payments — though he’s no longer talking to the media about why he's abandoning a practice he backed as recently as a month ago.
A Las Vegas Sun investigation into some of those records shows auditors might find plenty wrong with the witness-payment program. The Sun uncovered receipts showing overpayment to witnesses, payments for airfare, hotel stays and meals that went to people who did not testify, and an overall lack of oversight in the program, which has an annual budget of more than $1 million.
Defense attorneys Dayvid Figler and Daniel Bunin first exposed the controversial program and won an acquittal for a client in 2009 when a paid witness admitted to lying under oath to fund a crack cocaine habit. But instead of ending the practice then, the District Attorney’s Office defended it. The program, which has been in use in Clark County for more than 20 years, continued after Wolfson took office in early 2012.
Two months ago, the program again was the focus of a case defended by Figler and Bunin. The case involved their client, Gary Miller, who wound up winning acquittal on 24 counts, including first-degree kidnapping and sexual assault with a minor under 14.
As first reported by the Sun on Oct. 13, at issue in Miller’s trial wasn’t the legality of payments but testimony from the District Attorney’s Office that it had destroyed handwritten receipts for the vouchers, which witnesses redeem for cash.
Figler and Bunin argued in court it was tough to cross-examine witnesses about payments when the District Attorney’s Office burned the receipts. Clark County District Judge Elissa Cadish agreed and instructed jurors they could view the witnesses as less credible because of the destroyed evidence.
The payments — and lack of receipts to document them — don’t appear to have been a deciding factor in the jury’s verdict.
After the trial, Wolfson told the Sun he stood by the practice. But he recently told KLAS-TV he would be halting the controversial pretrial payments, saying they were “probably inappropriate.”
“The payment of a witness fee for preparatory interviews is not going to take place in the DA’s Office anymore,” Wolfson told KLAS.
Wolfson, through an assistant, this week declined to answer questions or comment further about the payments.
Alan Lefebvre, president of the State Bar of Nevada, questioned why such pretrial payments ever were made. He said while Nevada law allows witnesses to be paid $25 for appearing in court, it doesn’t extend to meetings with prosecutors.
“Our prosecutors are professionals and know how to access ethical opinions from the bar’s standing committee on ethics; the criminal defense bar has the same access,” Lefebvre wrote in an email. “The bar maintains an ethical hotline just for this purpose.”
Wolfson’s shift comes after inquiries by the Sun showed the $1.2 million budgeted to the DA’s Office every year for witness fees lacks oversight. Additionally, the Sun learned, the DA’s Office doesn’t know how its own process of paying witnesses works.
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In Miller’s case, an employee in the DA’s Office testified the office destroyed witness-payment records every three years.
The news surprised Figler — and for good reason.
It turns out the records weren’t gone.
Records requests from the Sun to Clark County produced some of the missing records, including a list of all payments to witnesses in Miller’s case.
At trial, prosecutors were adamant the payments were small and inconsequential: $25 to show up; money to get to and from court; meal money. But the records show one witness received an overpayment of at least $100 for mileage.
The records the Sun obtained in Miller’s case are littered with errors. In addition to the mileage overpayment, the records indicate two overpayments to witnesses for $61 and show one witness was underpaid $154.
Witnesses redeem the vouchers — issued by the DA’s Office — for cash from the District Court cashier. The redeemed vouchers essentially become the transaction receipt.
Figler said he also asked during Miller’s trial for the DA’s policy on witness payments and was told it didn’t exist. But when the Sun called the DA’s Office, the policy was quickly produced.
The written policy differed drastically from the testimony offered by the DA’s employee. For example, the policy does not address either burning records or disposing of them in any manner after three years. It does say, “All processed vouchers and corresponding subpoenas shall be retained for a period of 12 months.”
Figler said he wouldn’t go after the DA’s Office for giving false testimony in Miller’s case; he said he didn’t believe those employees lied on the stand. In fact, Figler said, he believes they were being as truthful as they could be under the circumstances.
But the uncovered records only solidify Figler’s skepticism of the program.
“It’s not broken down. We don’t know if (any overpayment) was just a gift. We just don’t know. It’s not good records,” Figler said. “They’re ambiguous at best and they’ve suddenly reappeared, which suggests the worst.”
Another point of intrigue is who, besides witnesses, benefits from the program.
In Miller’s case, a woman who was not a witness and did not testify was paid as a “support companion” for a witness. The support companion received $216 for food, according to county records. Court testimony revealed she also was given airfare and put up in a hotel.
“If we can show instances of them being a little fast and loose with the receipts or overpaying, then it becomes problematic to the system,” Figler said. “Frankly, if they want to keep doing it, I don’t care because I can exploit it, so I think it behooves them to marshal themselves, which it sounds like Wolfson is going to do.”
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Wolfson has asked that the audit answer three questions:
• What records does Clark County possess on the district attorney's expenses for payments given to witnesses from 2009 to 2013?
• Is there any independent audit looking into these expenses?
• Officers of the district attorney's testified that records before 2010 pertaining to witness payments weren't available. Is this true and is the district attorney considered the custodian of these records?
It is impossible to search the payment records by witness name or case number, according to Erik Pappa, county spokesman. Additionally, the county Comptroller’s Office stopped getting copies of the vouchers about a year ago; instead the office receives a spreadsheet listing payments.
The county manager agrees the practice should be audited, Pappa said, adding that once the audit was completed and its recommendations put into practice, it should be easier to fulfill records requests.
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While the practice of paying witnesses to attend pretrial conferences with prosecutors is now dead in Clark County, it remains unclear as to how widespread it is elsewhere.
Scott Burns, executive director for the National District Attorneys Association, said the practice wasn’t unusual or inappropriate.
“It’s something that goes on all over the country,” Burns said. “It’s up to each DA’s office to make that determination.”
Burns, however, was unable to name any other jurisdiction employing the practice.
John Wesley Hall, a former president of the National Association of Criminal Defense Lawyers, practices in Little Rock, Ark., and is licensed in Nevada. Hall said he’s only heard of the practice taking place in Clark County.
“I don’t necessarily buy that it is a common practice nationwide,” Hall said. If it is common, he noted, it should be standard for prosecutors to disclose that they are paying for something other than fees for court appearances.
As for Clark County, witness-payment records could come up in any pending case that started before Wolfson stopped the practice. In theory, if the prosecutors can’t come up with the records, defense lawyers could snag a jury instruction like the one in Miller’s case: It is OK to view paid witnesses as less credible because of the destroyed evidence.
“Every defense lawyer now should be asking for that jury instruction,” Hall said, “because presumably every witness has been paid if they came in and talked to them.”