LAS VEGAS - Attorney Herb Sachs on behalf of Sandy Murphy, on Monday
motion to dismiss, or in the alternative, motion for a new trial based on
prosecutorial misconduct and newly discovered evidence.
Defendant Sandra Murphy's defense team claims to have uncovered evidence
which, if allowed to be presented to the Court, would mandate that her
conviction be set aside and that she receive a new trial. The new evidence
allegedly substantiates Prosecutorial misconduct in the form of threats to
one of the prosecution's key witnesses, Steven Kurt Gratzer, not to talk to
or cooperate with defense attorneys and not to provide Murphy's attorneys
with exculpatory information in advance of trial; Newly discovered evidence
in the form of FBI 302 reports and an affidavit by a Federal Bureau of
Investigation Special Agent which reveal that the FBI was aware of a possible
Mafia conspiracy to have Binion murdered.
According to Sachs, this evidence compels the conclusion that even if
was murdered, Murphy was not the killer; Newly discovered evidence that one
of the prosecution's key witnesses, Deana Perry, perjured herself in order to
obtain reward money and to obtain concessions for her father who was
convicted of a double homicide. Misconduct by offering evidence that the
prosecution knew or should have known was untrue.
Sachs claims that during the trial, the prosecution called Steven Kurt
Gratzer as one of its key witnesses. At trial, Gratzer testified concerning
facts surrounding the death Ted Binion. However, Gratzer has recently
informed Counsel for the Defendant Murphy that Murphy was not involved in and
knew nothing about any plot to kill Binion, but that he was threatened by the
prosecution not to share this exculpatory information with Murphy's defense
team. Between August and November 1998, Gratzer became aware of information
that Murphy had nothing to do with Binion's death.
Sachs goes on to state that at his first interview by the prosecution
March 1999, Gratzer informed police detectives and a deputy district attorney
that, according to Tabish, Murphy was not involved in Binion's death. Gratzer
informed police detectives and a deputy district attorney about the
exculpatory information with regard to Murphy. However the police detectives
improperly stated to Gratzer not to talk to Defendants and that they were not
interested in information exculpatory to Murphy. Gratzer was directed by the
detectives not to contact the defense.
Sachs also claimed that although Gratzer was granted immunity for his
testimony, he was told at the time of the granting of that immunity not to
speak with the defense and to cooperate only with the prosecution or he would
risk losing his immunity. Gratzer was allegedly threatened by the prosecution
that if he did not cooperate the immunity agreement would be revoked and he
would be prosecuted. Gratzer was also allegedly told that he stood to gain
$10,000 in reward money if he did testify. Gratzer was in fact paid $20,000
after trial through the Binion estate. Throughout the history of this trial
Mr. Gratzer was warned and admonished to stay away from the defense.
According to Sachs, the prosecution's failure to produce exculpatory
evidence, i.e. Gratzer's statements, warrants a new trial.
Murphy's attorneys filed a Motion for Discovery in advance of trial. Among
other information, Murphy sought all potentially exculpatory evidence,
including statements with tended to negate Murphy's guilt. Despite this
discovery request, the prosecution never disclosed to Murphy's attorneys the
favorable information confirming Murphy's innocence.
As discussed above, Gratzer's statements are material. The fact that
was the prosecution's star witness supports this conclusion. Indeed, the
prosecution vouched for Gratzer's credibility in closing arguments. The
prosecution's failure and refusal to document Gratzer's statements which were
exculpatory to Murphy can only be the result of gross negligence or bad
faith. This conclusion is compelled by the detectives' statements to Gratzer
that they were not interested in information exculpatory to Murphy, stated
Sachs in the motion.
Sachs also emphasized that Nevada recognizes that the prosecution's
to preserve material evidence may result in dismissal. "Here, it is clear
that the prosecution failed to preserve material evidence when the detectives
failed to record those portions of the Gratzer statements which were
exculpatory to Murphy," stated Sachs.
After the trial, Defendants received copies of Federal Bureau of
Investigation 302 reports detailing an FBI interview of Alfred Mauriello,
conducted on April 9, 1999, by Special Agents Maurer and Howey, and an
interview of Antone Davi conducted on April 20, 1999, by Special Agent
Maurer. The interviews were conducted by the FBI during its investigation of
the murder of Las Vegas mobster Herbie Blitzstein. Davi was later convicted
for Blitzstein's murder. According to the Davi 302 report, during the
interview Davi detailed a Mafia plot to have Binion murdered. In particular,
Davi stated that the Mafia had previously threatened Binion's life, that the
Mafia contracted to have Binion killed, that they were going to make his
murder appear to be a drug overdose, and that they were going to use a stun
gun on him to stun him before killing him, according to Sachs.
On or about November 14, 2001, Murphy's defense team obtained an affidavit
FBI Special Agent Gerald McIntosh which was prepared on December 13, 1999, in
connection with an application for a wiretap authorization in a case
unrelated to the Binion and Blitzstein cases. According to the affidavit, one
result of the wiretap was the interception of "discussion of enterprise
members' knowledge and their associates' roles and participation in the
murder of Teddy Binion on September 17, 1998. These conversations will
concern the identifications of others than these defendants were involved in
the killing of Teddy Binion," according to Sandra Murphy's attorney Herb
Sachs argues that in supporting the application for a wiretap, McIntosh
testified, based on information he learned from confidential sources, that in
September 1999, a group of people traveled to Pahrump, Nevada to attempt to
find an additional silver stash of Binion's; that "someone else" other than
Tabish or Murphy was present when Binion died; that Binion received $10
million the morning he died, money which was never recovered; that Binion's
own family members may have been involved in a plot to kill Binion; that
Binion was suffocated with a pillow; and that the crime was made to look like
a drug overdose. Even with the exercise of greatest diligence Murphy's
defense team would never have been able to obtain the McIntosh affidavit in
advance of trial; it had been submitted to the United States District Court
for the District of Nevada under seal. It was not unsealed, and therefore
available to the public, until November 2001.
Sachs stated in his motion that the newly discovered evidence of other
potential suspects contained in the Mauriello and Davi 302 reports and the
McIntosh affidavit (collectively the "FBI Reports") mandate that the Court
grant Murphy a new trial. The evidence contained in the FBI Reports is newly
discovered in that it was not available to Murphy prior to trial nor did
defendants know of its existence. The McIntosh affidavit was clearly not
available to Murphy prior to trial. It was not even unsealed and publicly
available until after the trial and the hearing on Defendants' Motion for a
Sachs then states that the knowledge of the FBI is deemed to be the
of the District Attorney in the Blitzstein case since they both worked on the
case. Although the Court ruled that it was not a violation of Brady,
therefore Defendants were not entitled to a new trial. Nonetheless, law
enforcement (FBI and the District Attorney) had the obligation to provide
that information to the Defense and the failure to do so is another example
of prosecutorial misconduct leading to the dismissal of the charges with
prejudice, argues Sachs.
Murphy argued at trial that Binion either accidentally died or committed
suicide through a drug overdose. Forensic testimony placed time of Binion's
death as late as 2:40 p.m. on September 17, 1998. Testimony also established
that Murphy was out of the house during the afternoon of September 17, 1998.
It is entirely plausible that if Binion was in fact murdered, he was
by someone other than Murphy while she was out of the house, and the murder
was made to look like a drug overdose. Thus, the information contained in the
FBI Reports, had it been known to Murphy, could have easily created the doubt
necessary for the jury to acquit her, states Sachs.
The motion goes on to state that at trial, the prosecution called manicurist
Deana Perry as a witness. Perry testified that on September 10, 1998, Murphy
came into her salon for a pedicure and manicure. According to Perry, Murphy
spoke of her relationship with Binion and stated that "[Binion] was going to
die of a drug overdose" within three weeks. Murphy also allegedly told Perry
that she and her boyfriend were going to take Binion's silver after he died.
Perry denied that she was lying in her testimony to get reward money
deal for her father, a former Hell's Angel serving a life sentence in federal
prison. Following her trial testimony, Perry received $20,000 in reward money
from the State.
On December 13, 2001, Murphy's defense team interviewed Thomas McNamera
oath and obtained his sworn statement. Perry was a tenant who was boarding in
McNamera's house in September 1998. While Perry was living in McNamera's
house, she told McNamera that she intended to contact the police about her
conversation with Murphy. She stated that she was contacting the police to
see whether she could get a reduced sentence for her father, and mentioned
that she could also receive reward money. When asked by McNamera why she
wanted to testify against Murphy, Perry's response was that she "had to see
what she can do" about getting her father's sentence reduced. Newly
discovered impeachment evidence may justify a new trial if the witness
impeached is so important that the impeachment would necessitate a different
verdict, stated Sachs in the motion.
Perry was a critical prosecution trial witness whose testimony suggested
Murphy was involved in a plot to murder Binion. However, McIntyre's sworn
statement may impeach Perry's denial that she was testifying to get a reduced
sentence for her father and to obtain reward money. Instead, it may
acknowledge what Perry denied at trial, that the real motivators for her
testimony were simply to help her father and obtain reward money.
If it is found that the District Attorney's team including David Roger
David Wall hid evidence from the court, the Nevada Supreme Court may remand
the case back to Judge Bonaventure for a retrial.
David Roger, David Wall, and District Attorney Stewart Bell are currently
running for higher offices.
© Copyright Las Vegas Tribune, Inc.