Saturday, November 27, 2004
Copyright © Las Vegas Review-Journal

Binion forensic evidence crucial

In retrial, medical testimony raised doubt for defense

District Judge Joseph Bonaventure instructs counsel Oct. 28 during a break in the Ted Binion murder trial. Photo by ISAAC BREKKEN

The defendants were the same and the evidence similar, but this time Rick Tabish and Sandy Murphy were acquitted of murder.

So what happened?

According to some Las Vegas Valley defense attorneys, several differences between the pair's first trial and their retrial probably combined to persuade the jury to acquit Tabish and Murphy of charges they killed casino heir Ted Binion in 1998.

Perhaps the most important difference was the medical evidence surrounding the cause of death of Binion, a son of the legendary Benny Binion, who founded Binion's Horseshoe downtown.

"I believe their decision really did hinge in large part on the medical evidence," said Louis Palazzo, who represented Tabish during the pair's first murder trial in 2000.

One particular medical expert, Dr. Michael Baden, was widely viewed as the crucial witness for the prosecution's case, but the jury that convicted Murphy and Tabish of murder in 2000 viewed Baden's testimony far differently than the jury that acquitted the pair in the second trial.

Baden, a nationally known and respected forensic pathologist, testified during both trials that Binion was murdered in his home on Palomino Lane. Baden testified that Binion died from burking, which is a method of murder by asphyxia, and that burking is designed to leave little physical evidence.

Baden testified during both trials that red marks on Binion's chest were button marks that had been pressed into his chest by Binion's killers as they sat on his chest to suffocate him. Baden also said red marks on Binion's mouth were consistent with a physical attack and that a scratch on one of Binion's wrists was consistent with restraints being used.

After Murphy and Tabish were convicted of murder in their first trial in 2000, jurors in that trial said Baden's testimony was crucial.

"Doctor Baden was more believable than anyone else," juror foreman Artie Spear said.

But during Tabish and Murphy's retrial, defense attorneys produced an army of forensic pathologists, toxicologists and dermatologists to contradict Baden's theory of murder. Each said Baden's testimony was not to be believed, and as many as nine medical experts testified the red marks on Binion's chest were probably dermatitis, skin cancer or even a burn from a cigarette.

The jury forewoman in the second trial said the medical evidence as a whole led them to believe there was reasonable doubt about whether Binion was murdered.

"Those of us who felt it was murder, there had been reasonable doubt, and our instructions very clearly said if there was reasonable doubt, we had to go with not guilty," the jury forewoman said.

In a post-verdict interview, another juror in the retrial questioned why prosecutors didn't call more medical experts to support Baden's opinion.

Palazzo said if the medical testimony about the cause of death established reasonable doubt in jurors minds, then any other circumstantial evidence against Murphy and Tabish would automatically become irrelevant.

"The first jury maybe had more reverence for him (Baden) than the second jury," Palazzo said.

Murphy's former attorney, John Momot, agreed.

"This jury held the state of Nevada to its burden proof, saying, `Show me the murder of Mr. Binion first,' " Momot said.

Another significant difference between the first and second Binion trials was the evidence the second jury didn't hear. During the retrial, for instance, District Judge Joseph Bonaventure ruled that a comment Binion supposedly made the day before his death to his attorney, James Brown, was inadmissible.

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

The jury in the first trial heard Brown testify about this seemingly incriminating comment. But in the second trial, Bonaventure ruled Brown could only say that Binion called him the day before Binion's death, and that as a result of the phone conversation, Brown endeavored to take Murphy out of the will.

Bonaventure made the controversial ruling based in large part on guidance from the Nevada Supreme Court, which in 2003 overturned Murphy and Tabish's convictions from their first trial. In their ruling, the Supreme Court said the statement "If I'm dead, you'll know what happened," was the equivalent of Binion testifying from the grave.

The state's highest court said the testimony was potentially prejudicial to Murphy and Tabish, and that Bonaventure should have given an instruction to the jury in the first trial limiting the value of this testimony.

During the second trial, Bonaventure said he would only let Brown testify about the statement "If I'm dead tonight, you'll know what happened," if defense attorneys for Tabish and Murphy raised suicide as a possible cause of death.

When they didn't, Bonaventure ruled the comment inadmissable.

Momot said another key difference between the two trials was the fact that the jurors in the second trial didn't hear about extortion allegations against Tabish. During the first trial, the jury was asked to decide whether Tabish was guilty of extorting a former business associate named Leo Casey out of his interests in a sand pit.

The jury in the first trial determined Tabish was guilty of that crime, and Tabish is currently in prison on those charges.

But in overturning Murphy and Tabish's convictions on the murder charges, the Nevada Supreme Court said the jury in the first trial should have never heard about the extortion charges against Tabish. Instead, the extortion charges should have been part of a separate trial.

This meant that the jury in the retrial never heard about Tabish taking Casey to a sandpit where Tabish and another man allegedly restrained Casey with thumbcuffs, beat him with a large phone book, stuck a knife under his fingernails and stuck a gun in his mouth and ears.

A month later, Tabish obtained the rights to mine the potentially lucrative pit, about 30 miles south of Las Vegas.

"With those (extortion) counts not being charged this time, she (Murphy) no longer faced the prejudicial effect of the evidence that pertained to Mr. Tabish," Momot said. "That, coupled with the way they viewed Baden's testimony, seemed to be the turning point in this trial."

But as far as local attorney Greg Denue is concerned, the different outcome in the two trials can be traced directly back to the medical evidence. He said unlike most criminal defendants facing major felony charges in Clark County, Tabish and Murphy had the money to pay all the medical experts their fees to testify.

"All those experts saying it was an overdose," Denue said. "In retrospect, I think the state had a real uphill battle in saying he was murdered, and then proving it beyond a reasonable doubt."