Updated 

Vegas lawyers: Toss machete murder verdict for DA’s ‘systematic wrongdoing’


The Clark County public defender’s office has asked a judge to toss a 2012 murder conviction because prosecutors didn’t reveal they’d paid rent for key witnesses.

The case is one of many uncovered by a Review-Journal investigation, which showed the district attorney’s office has been helping out witnesses — in some instances to the tune of more than $1,000 — for nearly a decade.

The Clark County district attorney’s office paid $500 to cover rent for two victims in a high profile, high risk case, public records show.

In court papers filed Thursday, public defenders argue the case is “evidence of a systematic practice by the district attorney’s office to violate a defendant’s right to due process by hiding the payments even if a case goes to trial.”

The attorneys want Judge David Barker to throw out the case or at least grant a new trial.

Clark County District Attorney Steve Wolfson’s office said Thursday no one was available for comment.

CHANGING TESTIMONY

Victor Cruz-Garcia faced the death penalty for hacking a woman to death with a machete and slicing up her 27-year-old son and 12-year-old daughter in 2007. His attorneys agreed he had done the crime, but said he was mentally ill.

Jurors didn’t buy the insanity defense and found him guilty of first-degree murder and two counts of attempted murder. He was sentenced to life without the possibility of parole.

Cruz-Garcia’s trial centered not around whether the crime had happened — but what Cruz-Garcia’s state of mind had been at the time.

In 2007, Beatrice Alvarez, 46, let Cruz-Garcia and his girlfriend, Maria Erlinda Ulloa, move in with her. She knew the couple from church.

Weeks later, chaos erupted at the apartment.

Cruz-Garcia cut down the woman in front of her children. Her adult son, Sergio Casterjon, tried to save his mother, stepping between her and the killer. His arm and a finger were chopped off, and his younger sister was also cut.

Prosecutors described Cruz-Garcia as a “mean, violent drunk and nothing more.”

Casterjon, whose arm and finger were reattached, and his sister testified at trial and bolstered the assertion, according to the defense motion. Cruz-Garcia flew into a rage, they said, because their mother had asked him for rent money.

But prior to trial, the motion says, the two hadn’t mentioned an argument over rent. Both had said Cruz-Garcia acted “crazy” and that the fight stemmed from his coming home in a drunken stupor.

Defense attorneys knew the siblings had changed their accounts, but they couldn’t figure out why, the new motion argues.

“Because the defense was missing a material piece of the evidence ($500 rent payment), the defense was at a loss in providing motivation for their changed testimony,” the motion says.

Cruz-Garcia’s girlfriend, meanwhile, testified there was no argument over rent the night of the attack. Closing arguments zeroed in on her motivation to protect her boyfriend.

Prosecutors painted Ulloa as a liar, asking eight times if she had told police the truth and eight times if she’d told a doctor the truth, the motion argues.

“In reality, it was Sylvia and Sergio who told a different story at trial, a story different from what they told police the night of the incident, a story that surfaced after the $500 payment,” the motion says.

At trial, a doctor testified that in his opinion Cruz-Garcia was faking insanity.

While rejecting concerns about Cruz-Garcia’s mental state, jurors did take into account his limited education and frontal lobe dysfunction, and that he drank alcohol at a young age and saw the atrocities of El Salvador’s civil war, according to the motion.

Jurors could have given Cruz-Garcia a more lenient sentence, but decided only that he shouldn’t die for his crimes.

‘ABHORRED BY THE COURTS’

Cruz-Garcia’s public defenders filed a motion in 2011 asking for disclosure of any benefits to witnesses. At a hearing, Chief Deputy District Attorney Giancarlo Pesci said he would turn over any benefits. A month later, the court ordered prosecutors to comply.

Yet the $500 rent — which happened three years prior — stayed secret.

In August 2008, district attorney victim advocates asked Pesci to approve rental assistance for Alvarez’s children, emails show.

“If we lose touch with these victims I am afraid they [will] return to their native country and we will not have them for trial. So rental assistance sounds good to me,” Pesci wrote back.

Not alerting the defense about the payment when they had an ethical obligation as well as a court order to disclose it violates prosecutors’ “duty of candor, honesty, and fairness,” the motion contends.

The motion to overturn the conviction is based on “systematic prosecutorial misconduct,” shown by the Review-Journal and the public defender’s office’s own analysis of cases the paper identified.

The Review-Journal found that since December 2004 the DA’s office authorized 68 payments from a checking account maintained by its Victim/Witness Assistance Center, which coordinates witness travel, updates victims on case statuses and refers victims to outside help. Most were for help with rent, but they included a cellphone bill, a passport fee and high school computer class costs.

It’s unclear how many cases are involved or if payments were limited to victims and those related to their well-being. The district attorney’s office redacted cases numbers and other information from records obtained by the newspaper.

The DA’s office said it made 56 payments to victims or witness payments since 2004, with 49 for rent relocation assistance. The rest were classified as “other.”

The district attorney’s office count does not include voided payments. The Review-Journal’s analysis does.

The newspaper has identified only one instance where a payment was disclosed at trial.

The Public Defender’s office court filings argue the payments go beyond what’s allowed by state law.

Nevada law authorizes a $25 witness fee for court appearances and, in some cases, a per diem for expenses.

Wolfson has said the law allows money collected for restitution to go into a fund for “victims of crime created by the office of the district attorney of the county in which the court is located.”

Wolfson contends his office doesn’t have to disclose the payments until a case goes to trial; the ACLU of Nevada and the public defender’s office disagree.

“Systematic practices violating a defendant’s constitutional rights are abhorred by the courts,” the motion says.

Tod Story, head of the American Civil Liberties Union of Nevada, has called on Wolfson to halt the practice, and for the state attorney general to investigate.

Wolfson in a statement said the practice continues, but is under review.

Nevada Attorney General Catherine Cortez Masto’s office has said questions about a county fund should be addressed in a county audit.

The payments are rare in Clark County considering the district attorney handles an average 65,000 cases a year.

Still, the practice and number of payments were shocking to several private defense attorneys and the public defender’s office, which handles about 40 percent of the county’s criminal cases.

Wolfson was appointed district attorney in February 2012, replacing David Roger, who was district attorney from 2003 until 2012. Roger did not return multiple calls seeking comment on the issue.

The motions in the Cruz-Garcia case are scheduled to be heard Sept. 15.

Contact Bethany Barnes at bbarnes@reviewjournal.com or 702-477-3861. Find her on Twitter: @betsbarnes.

 

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