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October 16, 2018

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Ruling favors ex-defense attorneys in Binion case

District Judge Joseph Bonaventure today granted former defense attorneys and investigators in the Ted Binion murder case an "absolute" and "unlimited" waiver of the attorney-client privilege to defend themselves in court.

Bonaventure said the waiver applies to Rick Tabish's former lawyer, Louis Palazzo, and Sandy Murphy's former attorneys, Las Vegas Mayor Oscar Goodman and his partner, David Chesnoff, as well as former defense investigator William Cassidy.

The judge issued the ruling after Chesnoff informed him in court that he and Goodman won't answer questions if called to the witness stand without a waiver from Murphy. Murphy told the judge she does not want to waive the privilege.

"Our position is pretty absolute, your honor," Chesnoff told Bonaventure at the start of today's evidentiary hearing on whether to grant Murphy and Tabish a new trial. "We're not going to be subject to examination. Our position is we're not saying anything."

Defense lawyers are considering calling Goodman and Chesnoff to the stand next week to discuss a visit by Murphy to their office to deliver bags of silver coins that prosecutors believe were stolen from Binion's home after his Sept. 17, 1998, death. The defense claims that evidence should have been brought out at the trial.

Last week, Chief Deputy District Attorney David Roger had asked that the privilege, which prohibits lawyers from discussing private communications with clients, be waived so that he can defend Palazzo's professional conduct during the trial.

In his motion for a new trial last month, Tabish's current lawyer, William Terry, alleged that Palazzo gave poor legal advice to Tabish.

Terry charged that Palazzo refused to allow Tabish to take the witness stand and call key witnesses who would have portrayed his client in a more favorable light.

Terry also charged that Palazzo "abandoned" the interests of Tabish in favor of Goodman, whose testimony became relevant to the defense toward the end of the trial.

Terry said that Cassidy, Goodman's now-suspended top political aide, was allowed to call the shots for the defense.

Cassidy, hired as a consultant for Murphy, was suspended last week from his City Hall job in part because he used a city cellular telephone and racked up a large bill while working for the Binion defense.

The suspension followed a Sun story disclosing that Cassidy reportedly talked about wanting to break into the homes of key prosecution players in the Binion trial. Cassidy called the story "fiction."

Tabish, a 35-year-old Montana contractor, and his lover, Murphy, a 28-year-old onetime topless dancer, were convicted May 19 of killing Binion and stealing his valuables following a seven-week trial. The 12-member jury that found them guilty later recommended sentencing them to life in prison with the possibility of parole on the first-degree murder charge after 20 years.

Bonaventure today was to hear testimony from most of the 12 jurors who convicted Murphy and Tabish of killing Binion, a wealthy former casino executive, about accusations they rendered a verdict based on documents not brought into evidence.

Those allegations were raised by juror Joan Sanders in an interview with defense investigators and rebutted by 10 of her colleagues, including foreman Arthur Spear Jr., in sworn affidavits given to prosecutors.

Sanders was to be the first witness called this morning.

This morning, Chief Deputy District Attorney David Wall filed a motion asking Bonaventure to strike an affidavit from Sanders claiming she did not believe Murphy and Tabish killed the 55-year-old Binion in 1998 even though she voted to convict them.

Wall said defense lawyers are prohibited from delving into the "mental processes" of the jurors when seeking a new trial.

"The Nevada Supreme Court, in their review of both civil and criminal cases, has always protected the mental processes of deliberating jurors from post-trial attack by zealous defense counsel and their investigators," Wall wrote.

The four-page affidavit was filed late Thursday by Murphy's attorney, John Momot.

"During the last day of the guilt phase of deliberations, I said that I thought the defendants were in the house while Mr. Binion died, but that I did not believe they were responsible for his death," Sanders said. "Fellow jurors told me that if the defendants were in the house at the time of death, that is the same as murder.

"In response to the fellow jurors' comments, I became physically ill and cried."

Sanders added: "I do not believe Sandy Murphy or Rick Tabish did anything to ... Binion on Sept. 17, 1998, to cause his death."

She said several jurors referred to the term "depraved indifference" during the final hours of the deliberations.

"After the discussion of depraved indifference," Sanders said, "the jurors, as I mentioned earlier, said if you are present in the house while the person is dying, you are guilty just as if you actually committed the act because you are not assisting the dying person."

Defense lawyers contend the jurors should not have considered depraved indifference during their deliberations because it was not included in the jury instructions and is not a legal standard in Nevada. The term has been used in other states.

Sanders said she changed her vote from not guilty to guilty as a result of pressure from her fellow jurors.

The jurors, she said, originally voted 7-5 to acquit Murphy and Tabish. Toward the end of deliberations, the vote was 10-2 for conviction until finally all 12 agreed on a guilty verdict.