Tuesday, July 15, 2003
Copyright © Las Vegas Review-Journal

Murder convictions in Binion case overturned

State Supreme Court cites two legal issues in ordering new trial

Rick Tabish Still serving two consecutive sentences of 18 to 120 months for other convictions Sandy Murphy Defense attorney Herb Sachs says he plans to seek a motion to set bail for her Slaying suspects Sandra Murphy and Rick Tabish sit in court August 1999. Murphy wears around her ankle a monitoring bracelet that she said she spray-painted beige to match her shoes and clothes. Behind Murphy and Tabish is Jason Frazier, an associate of Tabish. Photo by Jeff Scheid. "I think a fair assessment of the evidence makes it clear that Sandy Murphy has to be freed. I'm confident that will be the ultimate result." ALAN DERSHOWITZ DEFENSE ATTORNEY WHO ARGUED SANDY MURPHY'S APPEAL BEFORE THE NEVADA SUPREME COURT "We felt that we had a case provable beyond a reasonable doubt. A jury of 12 people agreed. In our opinion, the state of the evidence has not changed." DAVID ROGER CLARK COUNTY DISTRICT ATTORNEY "She didn't get a fair trial the first time. I kept saying it, and no one wanted to listen. Well, the Supreme Court listened, and those are the people who count." JOHN MOMOT MURPHY'S DEFENSE ATTORNEY AT TRIAL "All these years, he's been innocent." LANI TABISH TABISH'S MOTHER Click image for enlargement.

It was early Monday in the Montana home of Lani and Frank Tabish, and the phone was ringing.

On the other end of the line was their son, Rick, calling from a Nevada prison.

"He said, 'Mom, I'm not a murderer,' " an emotional Lani Tabish recalled. "He was so happy."

The joy was the result of a stunning Nevada Supreme Court decision that overturned the murder convictions for Tabish and his onetime lover, Sandy Murphy, in the 1998 death of casino figure Ted Binion.

On Monday, the court said the 2000 trial of Murphy and Tabish was flawed and thus unfair, setting up a second trial in one of Las Vegas' most celebrated criminal cases.

"This gives us an opportunity to see that justice is done," said Murphy's attorney, Alan Dershowitz.

Like Tabish, Murphy was elated by the ruling, said Murphy family friend Lou Eppolito of Las Vegas.

"She is just ecstatic," said Eppolito, who talked to Murphy by phone.

"She believes in God. ... She said, 'I know he helped this happen,' " Eppolito said.

With ordering a new trial, the Supreme Court's action means Murphy and Tabish could be released from prison soon. Murphy defense attorney Herb Sachs said he would start preparing a bail motion for Murphy. Prosecutors said they would fight such a motion.

"I think a fair assessment of the evidence makes it clear that Sandy Murphy has to be freed," Dershowitz said.

The possibility of release for Tabish, though possible, would appear to be more difficult.

Despite the Supreme Court's ruling, Tabish still must serve two consecutive sentences of 18 to 120 months for his conviction of extortion with use of a deadly weapon in the beating of business associate Leo Casey.

Tabish would have to be paroled twice on his remaining sentence, once for extortion and once because the crime was committed with use of a deadly weapon.

Still, it would be possible for Tabish to be paroled twice, Tabish attorney Bill Terry said.

"He is immediately eligible," Terry said, adding, "We have to push to get him paroled quickly."

Clark County District Attorney David Roger expressed disappointment with the court's ruling.

"We will retry these defendants at the earliest opportunity," Roger said.

Roger, who prosecuted the case with current District Judge David Wall, said he does not have the time to retry the case himself. He said the case already has been reassigned to veteran county prosecutors Robert Daskas and Christopher Lalli.

"I would love to retry these defendants," Roger said. "However, I can't take the four months away from my duties as district attorney."

Disappointment was the word used by a Binion family spokesman to describe the reaction of Binion's sister, Becky Behnen, to the court's ruling.

"We feel that the same evidence that convicted these individuals the first time is still there and that justice will ultimately prevail in another trial," spokesman Nolan Dalla said.

In a case that received international media attention, Binion was found dead in his sprawling Las Vegas house in 1998. Binion's girlfriend, Murphy, was having an affair with Tabish at the time of his death.

Suspicions that Murphy and Tabish were responsible for the death soon began to mount. Fueling the suspicion was authorities' contention that Tabish was found digging up Binion's silver at the man's Nye County ranch within a day of his death.

Murphy and Tabish were charged with first-degree murder, robbery and other charges, but varying opinions on a cause of death for Binion, a heroin addict, have persisted over the years.

During the trial, some witnesses for the prosecution testified that Binion died of a drug overdose, while others said he was "burked," deliberately suffocated by someone after being forced to take heroin and the sedative Xanax.

The jury convicted the two of first-degree murder, conspiracy, robbery and other charges. Each was sentenced to life in prison with the possibility of parole.

In its ruling Monday, the Supreme Court overturned the convictions of first-degree murder, conspiracy, robbery and grand larceny for both defendants. The decision was based on two legal issues.

The first involved allegations that Tabish extorted, kidnapped and beat Casey, who shared a business interest in a sand pit with Tabish. The jury convicted Tabish of extortion and other charges related to Casey.

The Supreme Court ruled the jury never should have heard about the Casey matter and that it should have been the subject of a separate trial for Tabish. The Supreme Court determined Murphy was prejudiced by the jury hearing the Casey allegations.

"The (error) was especially prejudicial in Murphy's case, although it was manifestly prejudicial to Tabish's trial on the other counts as well," the court said in its majority opinion.

The high court overturned the convictions for another reason: The jury heard about a statement Binion supposedly made to attorney James J. Brown, who worked on behalf of Binion's estate. Brown testified at trial that Binion made the following statement:

"Take Sandy out of the will if she doesn't kill me tonight. If I'm dead, you'll know what happened."

The Supreme Court ruled District Judge Joseph Bonaventure "abused discretion" by allowing the statement into evidence without an accompanying limiting instruction. Such an instruction would advise the jury on how much weight the statement should have as potential evidence.

"The prejudicial impact was great: the statement strongly implied Murphy killed Binion," the majority opinion said.

Four of the seven justices signed the majority opinion, which was authored by Justice Bob Rose. Justices Deborah Agosti, Cliff Young and Nancy Becker completed the majority.

The Supreme Court ruled that Tabish and Murphy could be retried together on the murder charge.

Justice Miriam Shearing wrote in her opinion that the convictions of murder, conspiracy and robbery should be reversed, but other convictions should stand.

Justices Myron Leavitt and Bill Maupin dissented from the majority opinion and said the convictions should be upheld. Maupin wrote the jury should have adjudicated the Casey charges because they supported the state's theory "that appellants engaged in a common scheme or plan to kill ... for monetary gain."

At trial, prosecutors suggested that Tabish was deeply in debt when Binion died and that he would have benefited greatly from Binion's murder.

Terry said the severance of the Casey charges from the Binion murder and robbery case has been a primary issue of Tabish's appeal.

"We raised this all the way from the beginning," Terry said.

Prosecutors could file a motion in the coming weeks asking the Supreme Court to reconsider its decision.

Roger said no decision had been made on such a motion as of Monday evening but said it was viewed as unlikely.

Within an hour of the ruling, word had circulated throughout the Clark County Courthouse.

John Momot, Murphy's attorney at trial, was observed in District Court cracking a huge smile as he spread the word that the conviction had been overturned.

Moments later, Momot encountered Tom Dillard, a private investigator who was hired by Binion's estate to investigate Binion's death.

Momot grinned as he shook the hand of Dillard, who shrugged his shoulders.

"It's the legal system," said Dillard, whose investigative work is commonly viewed as a significant reason why Tabish and Murphy were charged.

"It has nothing to do with anything I did," Dillard said. "They got a new bite at the apple."

Momot said that before his client's trial, he repeatedly raised the issue of severing the Casey charges from the Binion murder and robbery charges, only to be denied by Bonaventure.

"She didn't get a fair trial first time," Momot said of Murphy. "I kept saying it, and no one wanted to listen. Well, the Supreme Court listened, and those are the people who count."

Tabish's trial attorney, Louis Palazzo, described the ruling as "exhilarating" and praised the court's decision.

"The prosecution used these Leo Casey counts to really try to muddy up the defendants, and that worked up until today," Palazzo said.

Dershowitz said the second trial will be much different. He pointed to an issue that accompanied Murphy's appeal: the testimony of renowned forensic pathologist Michael Baden during trial.

Baden said marks on Ted Binion's chest were from shirt buttons that were pressed into his chest while he was being suffocated.

Defense attorneys since have said an examination of the marks by a Harvard skin expert show they probably were inflammatory lesions.

"I can't wait to cross-examine Dr. Baden," said Dershowitz, a Harvard law professor.

Dershowitz said prosecutors have conceded in and out of court that "they can't prove any drug case," referring to the idea Binion was forced to lethally ingest narcotics.

"They are now stuck only with the burking case, which has been demolished by the expert," Dershowitz said.

Roger disagrees.

"The state of the evidence has not changed," he said.

A trial date has not been set. The case is expected to be remanded to Bonaventure's courtroom in the coming weeks.