Juror to testify in mistrial request

A juror who might have accidentally eavesdropped on private conversations between a defense attorney and a defendant in a murder-for-hire trial will be called to testify about what he actually heard.

District Judge Douglas Herndon said Thursday that the juror, Paul Swaim, will appear in court next week. Swaim might have overheard conversations between attorney Michael Schwarz and defendant Nelson Ronald Brady Jr., who was convicted in February on three counts of solicitation to commit murder.

Authorities said Brady, 36, tried to hire someone to kill three witnesses in a murder case involving former bodybuilding champions Craig Titus and Kelly Ryan. The couple was accused of killing their 28-year-old personal assistant Melissa James in 2005.

In May, 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.

During Brady’s trial, Swaim used court-supplied headphones that might have allowed him to listen to conversations jurors typically couldn’t hear.

After learning of the situation, Schwarz asked the court to declare a mistrial in Brady’s case. The attorney said the juror should have informed the court during the trial that he could hear the conversations and that his silence amounted to juror misconduct.

"You cannot have a juror having the ability to listen in on a conversation (between a defendant and his or her attorney)," Schwarz said Thursday. "It’s just simply wrong."

But county prosecutor Josh Tomsheck said that he overheard a lot of things Schwarz said to his client because the defense attorney spoke so loudly during the trial. Tomsheck called it "Kephart disease," a reference to Chief Deputy District Attorney William "Bill" Kephart, who is running for district judge and is known for talking loudly.

Schwarz "doesn’t have the ability to whisper," Tomsheck said.

Brady’s defense team learned that Swaim might have overheard the conversations after a reporter for the Las Vegas Tribune, a free weekly publication, interviewed the juror. The reporter, Jeff Duffett, gave Schwarz a copy of the taped interview. It was filed with the court.

Duffett also might be called to testify.

Swaim provided a sworn affidavit that said he could hear "many conversations that were being held at the defense table" while he served as a juror from Jan. 29 to Feb. 4.

The Regional Justice Center courtrooms are equipped with the JAVS system, a recording system used by courthouses nationwide. Microphones are placed in front of the witness, the judge and at the tables for defendants and prosecutors. The voice-activated system records whoever is speaking.

After concerns were raised about the Brady trial, court administration printed small warning cards and placed them in all the courtrooms at tables for defendants and prosecutors, said Michael Sommermeyer, spokesman for the District Court.

The cards read: "Need privacy? Press and hold this button to turn off the microphone. While light is off you can speak privately."

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

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