Defense attorney requests mistrial

A courtroom recording system that allowed a juror to hear whispered conversations between a defendant and his attorney during a murder-for-hire trial might lead to a mistrial in the case.

Defense attorney Michael Schwarz said the juror overheard private conversations between him and his client, Nelson Ronald Brady Jr. during a weeklong trial last winter.

The juror, Paul Swaim, was able to hear the conversations because he was wearing court-supplied headphones that picked up conversations typical jurors wouldn't have heard.

That amounted to electronic eavesdropping, Schwarz said.

He asked District Judge Douglas Herndon on Tuesday to declare a mistrial.

"The juror committed misconduct during the trial," Schwarz said.

Herndon said he wanted more information about the alleged eavesdropping, such as what exactly the juror heard and if it influenced the juror's verdict. A hearing on the matter will be held July 1.

A jury in February convicted Brady of three counts of solicitation to commit murder. Authorities accused Brady, 36, of trying to hire a hitman to kill three witnesses in the Craig Titus and Kelly Ryan murder case.

Former bodybuilding champions Titus and Ryan were accused of killing their 28-year-old personal assistant, Melissa James, in December 2005. James' charred body was found in a torched Jaguar in the desert near Blue Diamond Road.

On May 30, Titus pleaded guilty to second-degree murder, first-degree kidnapping and arson. Ryan pleaded guilty to arson and battery with a deadly weapon with substantial bodily harm. They are scheduled to be sentenced July 18.

Swaim served on Brady's jury from Jan. 29 to Feb. 4. He said in an affidavit that he "could hear many conversations that were being held at the defense table, between Mr. Schwarz and the defendant, Ronald Brady Jr."

Brady uses "Ronald" as a first name but is listed as Nelson Brady in official court documents.

Josh Tomsheck, the county prosecutor in the case, said Schwarz and Brady could have used a pen and paper to communicate sensitive information during the trial.

Tomsheck said Schwarz also could have manually turned off the microphone placed on his courtroom table if he didn't want a conversation overheard.

Tomsheck also said he overheard conversations between Schwarz and Brady during the trial because they were speaking loudly.

Schwarz said he didn't know the microphone system had a "mute" function. He also said he's not required to write messages down when communicating with clients during a trial.

According to District Court Administrator Chuck Short, no one has ever complained that the recording system used at the courthouse picks up snippets of conversations between defendants and their attorneys.

He said courthouse technicians will try to recreate the conditions in Herndon's courtroom to see if there was a problem with the recording system.

Officials also are going to track down the headphones used by Swaim to see whether they malfunctioned.

"It's totally inconsistent with the way the system is designed to work," Short said.

The recording system, known as JAVS, is widely used in courthouses across the country. Clark County District Court has used JAVS since 1993 and has updated it since then.

Under the system, microphones are placed in front of the judge, prosecutor and defense attorney and at the witness stand. The voice-activated system records whoever is speaking and stops only after the speaker pauses for half a second, Short said.

The microphones are sensitive and court officials are told to turn the system off when a court session is over so no private conversations are recorded.

"Like any technology, it's only as good and effective as the individual operating it," Short said.

Contact reporter David Kihara at dkihara@reviewjournal.com or 702-380-1039.