DA misconduct to be weighed
On Feb. 13, a judge is scheduled to decide whether prosecutorial misconduct occurred during Rick Tabish's murder trial.
Tabish, along with Sandy Murphy, was convicted in May 2000 of murdering casino heir Ted Binion. The verdicts were overturned in 2003 by the Nevada Supreme Court. But Tabish's conviction on charges that he extorted Jean sand pit operator Leo Casey was left unchanged by the jurists.
Tabish remains in prison, while Murphy has been released on bail. The pair are scheduled to be retried in October.
Tabish's attorney, J. Tony Serra, is starting the process of having the Casey count thrown out because of prosecutorial misconduct he said occurred during the first trial. If granted, Tabish could eventually be freed on bail.
Serra filed a 30-page writ on Dec. 12, outlining specific misconduct by then Deputy District Attorney David Roger, who was later elected DA of Clark County. Roger personally replied to Tabish's writ, according to court documents.
But Roger didn't respond to the points of law presented by Tabish's lead attorney Serra. Instead, in Roger's reply filed Jan. 16, he put a spin on Tabish's writ, writing that Tabish had instead claimed that his counsel was ineffective.
Roger appeared to let emotion enter into his official response to Tabish's writ.
"The memorandum includes a caustic attack on District Attorney David Roger, claiming that he engaged in prosecutorial misconduct and suggested that the testimony of [witness] Leo Casey was perjured."
Then, Roger wrote: "This claim is bewildering."
Roger switched gears and said that Tabish "places 'blame' for failing to raise the various issues contained in his petition squarely on the shoulders of [Tabish's former attorney] Mr. [Bill] Terry."
He also wrote that "the defendant is a convicted felon, [and] blatantly lied to authorities. ... Are the State and the Court required to blindly accept the statements of such a person? It is, perhaps, an understatement to say that the Defendant is woefully lacking in credibility."
Roger dismissed the legal points and came back to an earlier assertion, stating that he wants to question Terry and have Tabish's attorney-client privilege waived. Roger wrote that by Tabish filing the writ, "the defendant has waived the attorney-client privilege by the mere filing of his memorandum and affidavit."
On Dec. 29, Roger filed a motion asking that Tabish's attorney-client privilege be waived. If granted, it would open the unprecedented door to any and all conversations Tabish had with his attorney, giving prosecutors an unusual inside look at previous legal strategies.
Serra didn't mince words in his response to Roger. He wrote that the state is contending that Tabish claimed in his writ that "his appellate attorney, William B. Terry, was ineffective. This is not true. At no time does Mr. Tabish assert that Mr. Terry was ineffective. Rather, the State in its attempt to invade the attorney-client privilege, misrepresents the issue before this court."
Also, Serra wrote that the prosecution's attempt to delve into the attorney-client privilege "is misplaced, unwarranted and brinking on a violation of Mr. Tabish's Sixth Amendment right to counsel due process rights."
Tabish's lawyer has requested that the state's motion be denied. Judge Joseph Bonaventure will consider both sides at a Feb. 13 hearing.
Cathy Scott is a freelance journalist and author of such titles as Murder of a Mafia Daughter and Death in the Desert. Do you have a Crime & Punishment tip? If so, call Scott at 702-243-2923 or e-mail her at CRScott@aol.com.
||Truth in Justice