Undisclosed payments landing cases back in court

A district attorney’s office practice of paying witnesses’ rent using an off-budget checking account is landing cases back in court.

At issue isn’t whether or not the payments were warranted, but the fact that prosecutors kept them secret.

A judge heard arguments Monday to overturn a 2012 murder conviction because prosecutors didn’t disclose a rental payment made to a witness’s landlord. And on Friday, a court-appointed attorney filed a motion asking a judge to overturn a conviction in a 2008 shooting at a school bus stop because prosecutors didn’t disclose they’d paid to relocate a key witness.

A public records request showed more than 50 payments were made to cover witnesses’ expenses over the course of a decade. It was unclear how many criminal cases were involved because the district attorney’s office would not release records showing case numbers. The Review-Journal found one instance so far where a payment was disclosed.

The Clark County Public Defender’s office, which handled many of the cases, argued in court Monday that the payments show a pattern of abuse so severe that Judge David Barker should overturn Victor Cruz-Garcia’s conviction in a murder case involving a machete.

Cruz-Garcia faced the death penalty for hacking Beatrice Alvarez, 46, 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.

Public defenders argued the survivors’ testimony changed after the DA’s office covered $500 in rent. Not knowing about the payment hurt the defense’s ability to argue he committed the brutal attack as a result of insanity, they said.

The prosecutorial misconduct is so serious that the judge should dismiss the case entirely, public defenders argued.

Deputy Public Defender Julia Murray said in court that the district attorney’s office set up a process “where they are circumventing the rules of this court, the rules of this state and the rules of this country.”

Chief Deputy District Attorney David Stanton admitted prosecutors hadn’t told the defense about the payment, but said they weren’t required to because the payment wasn’t relevant. He said bringing up a $500 rent payment at trial would have only made the case worse for the defense.

Cross-examination about the payment would have informed jurors that years after prosecutors covered some rent, Alvarez’s adult son was homeless under a bridge, he said. The plight befell him after his arm was almost completely severed when he tried to save his mother from Cruz-Garcia’s rampage, according to prosecutors. His younger sister ended up living in Mexico with her grandmother, Stanton said.

Deputy Public Defender Sharon Dickinson fired back that prosecutors don’t get to decide defense strategy. How Stanton thought the payment would have affected the case didn’t change the fact prosecutors were under court order to disclose possible benefits, she said.

Barker ruled Monday that before he decided what should be done, if anything, he needed to know what else wasn’t disclosed to the defense. He ordered prosecutors to calculate everything they’d paid outside of state law. Nevada law requires witnesses to be compensated for the actual costs of coming to court.

SECOND CASE

Franklin Jackson is the second person to ask a judge to toss his conviction in light of the off-budget payments.

His defense attorney argues that Jackson, who was 17 at the time of the crime but was tried as an adult, was railroaded after prosecutors didn’t disclose that they’d paid $500 to relocate the only person who identified him as a gunman in a 2008 shooting at a school bus stop.

A jury convicted Jackson of one count of conspiracy to commit murder and seven counts of attempted murder with a deadly weapon for the after-school shooting.

Prosecutors argued Jackson plotted with others to ambush another teen after he got off a school bus from Mojave High School. The shooting — which left six wounded — was a punishment for an earlier altercation, prosecutors argued.

Mohave student David Macias had bumped into Nicco Tatum the day before the shooting, prosecutors said. Tatum later rounded up friends, which included Jackson, to exact revenge, prosecutors argued. None of the wounded suffered life-threatening injuries. Tatum pleaded guilty to attempted murder with a deadly weapon in the case.

Despite the shooting happening in front of a busload of teens, the case was a difficult to crack.

The defense cited a media report, published after the trial, that follows how a detective convinced the fearful mother of a witness to help, giving the police the break they needed.

Defense attorneys worked to get a full picture of how police had zeroed in on their clients, filing standard motions asking for all benefits to any witnesses as well as asking for information about any confidential informants, according to court filings.

Jackson’s attorney, Betsy Allen, argued that prosecutors abused the system by not disclosing that they’d paid to relocate the mother and her daughter. The mother and daughter had to relocate because of threats, the records show.

“If, as the State will allege, it was purely to assist victims due to threats or poverty or whatever innocuous reason they give, why was it hidden for years from the defense?” Allen asked in the new court filings.

This is the second time in this case that it has come to light that prosecutors withheld evidence, Allen argued. Jackson previously appealed, contending prosecutors hadn’t disclosed a note the mother slipped to detectives that led them to investigate Jackson. But prosecutors said the note was in a trial notebook that the defense reviewed. The Supreme Court denied that appeal.

A hearing in front of Judge Michael Villani is set for Oct. 28.

District Attorney Steve Wolfson announced last month that he is reviewing all witness payment polices, while continuing to assist victims when deemed appropriate.

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