Nevada Authorities Accused of Routinely Hiding Evidence

If you're going to get charged with a crime, maybe you better hope it's not in Nevada.

Police and prosecutors in the Las Vegas Valley routinely try to keep essential information from defense lawyers, violating the constitutional rights of those accused of crimes, defense attorneys and the county public defender say.

Besides violating the U.S. and Nevada constitutions and potentially putting innocent people behind bars, the actions of the district attorney's office and Metro Police waste large amounts of time and money, as defenders must go to court over and over to obtain evidence to which they are legally entitled, the attorneys say.

Defense lawyers plan to file a "major lawsuit" in the next few months over the issue.

High courts have repeatedly ruled that prosecutors' bag of tricks does not include hiding evidence that might hurt their case and help the accused. But that, the defense lawyers contend, is what is going on in Clark County.

Prosecutors deny the allegations and say they have an open-file policy. Then they turn around and say:

....defense lawyers are not entitled to as much documentation as they think they are.

That's the wrong attitude. And one of the reasons so many innocent people are languishing in our jails. As one lawyer points out,

...the fight for full disclosure wasn't about "getting criminals off on a technicality."

"This is about making sure that the trial is a search for truth, and that all the truth comes out," he said. "I'm tired of hearing about people being exonerated after years on death row. That's how you get innocent people convicted -- when you don't get all the facts."

Maybe Las Vegas Mayor Oscar Goodman, formerly one of the nation's top criminal defense attorneys, can make a few calls and resolve this.

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    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#1)
    by cp on Tue Jan 11, 2005 at 01:34:44 PM EST
    again, this begins to appear to be the norm, not an aberration, across the country. police and prosecutors see the bill of rights as a hurdle to be trampled, or gone around, not something to be respected. this is not some rare event, it happens all over the country, every day. the cost, in dollars, shattered lives and, most importantly, the loss of respect for both the law, and those charged with enforcing it, are incalculable. when discussion turns to the degradation of morals in this country, this is where it should start, not tv or books or movies.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#2)
    by Patrick on Tue Jan 11, 2005 at 01:53:40 PM EST
    CP, It appears the norm because hardworking honest cops and prosecutors doing their jobs is not newsworthy and you won't read about the hundreds of thousands of times they do the right thing. You'll only hear about the small percentage of bad cops, bad prosecutors or stupid mistakes.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#3)
    by cp on Tue Jan 11, 2005 at 03:41:52 PM EST
    patrick, i realize that. unfortunately, what people remember are the bad cops/prosecutors/judges/jail guards, etc. just as the dimwits at abu ghraib and other prisons represent but a small portion of the total, these are what everyone will remember.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#4)
    by Sailor on Tue Jan 11, 2005 at 04:42:08 PM EST
    When cops are indoctrinated into the Darryl Gates school of policing i.e. "respek my athority!" [/cartman] and the fact that the leading prosecutor of the country (you know, the guy who is supposed to be defending the civil rights of ALL americans), advocates torture and the ascension of the exec branch over the other 2 branches of gov'mint, then it is the norm. And according to the Sun, (and I lived there, no one would think this paper is a part of the 'liberal media conspiracy.') this is not an aberration of a few 'bad apples', this was 'routinely' done by the department. Patrick, I'll believe this is an anomaly when you start turning in your fellow cops who have broken the law, otherwise STFU!

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#5)
    by Patrick on Tue Jan 11, 2005 at 05:22:14 PM EST
    Sailor, You continue to talk out your a$$, but anyone with a lick of reason knows that despite what you think, the vast majority of any group in society represent law abiding honest and hard working people. Besides, I no reasonable person would get their view of society from a cartoon....Cartman? Sheesh, grow up.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#6)
    by Adept Havelock on Tue Jan 11, 2005 at 08:38:43 PM EST
    Patrick- Sailor merely used a reference to an extremely pedestrian animated comedy to (nicely) illustrate the D. Gates school of police work. You made the wild assumption that he forms his societal views from this work. Pretty thin evidence for such an assumption to me. Nor did any of his statements state anything contrary to the idea that the "vast majority of people are law abiding". He did however point out that ONE media source stated that this type of activity is routine in ONE department. Me thinks he simply pushed your buttons by reminding you of the times you've turned your back on the law you swore to uphold when another officer broke it. I won't debate the rightness or wrongness of such actions, as enough friends of mine carry a badge and have convinced me that this can be a truely Gray area. "Grow up", coming from one who argues such as you do, is irony at it's finest.

    Sorry to burst everyone's bubble, but the vast majority of police are corrupt, and nearly all of them will willfully file false police reports if it suits their purpose. One purpose is revenge, such as the suspect got away before or the suspect gave the officer a hard time during arrest, and so forth. Another is to avoid embarassment over a mistake the officer may have made. Often, the false police report will concern a suspect that the cop "knows" is guilty but there is insufficient truthful evidence to convict the suspect, so the cop makes sure the suspect doesn't get away, by lying about what happened. Finally, one motivation (akin to the revenge motivation) for false police reports is that the cop justifies the false arrest on the ground that the "scumbag" has presumably committed many prior crimes, so the scumbag needs to be convicted (punished) even if the suspect was guilty of no crime when he is "finally" arrested. Often, a cop will also exaggerate a "righteous" arrest, but decide that the courts are too easy on criminals so the cop exaggerates the facts to make the suspect sound much worse than he/she was (coincidentally, this exaggeration is often a way to ensure a conviction in an otherwise shaky case).

    As a federal habeas attorney representing capital clients in Nevada, I deal with the Clark County District Attorney's office every day. I can tell you from my experience that the Clark County District Attorney's Office has a pattern and practice of failing to disclose material exculpatory and impeachment evidence, especially in capital cases. The CCDA routinely fails to disclose material impeachment information. For example, rarely if ever does the DA's office disclose criminal history reports, NCIC's, non-trial dispositional memoranda, felon registration records, immigration benefits, payments made, and other administrative benefits received by the state's witnesses. The CCDA has de facto policy creating a separate file, the contents of which are rarely disclosed to defense counsel. The file is called the "Major Violator's Unit" file. When subpoenas are served on the DA's office in habeas corpus proceedings, the DA's office has historically omitted disclosing the contents of the MVU file. The current District Attorney, David Roger, has admitted all of this in a declaration. The CCDA has no internal mechanism to ensure that exculpatory and impeachment information in the possession of law enforcement is ever scrutinized for Brady material. Former custodians of record at CCDA and Metro have stated under oath that there is no internal mechanism to ensure that information in the possession of law enforcement is ever reviewed by the prosecutor trying the case. The CCDA's so called "open file" policy is a fraud. The open file routinely fails to include the impeachment material described above and also frequently fails to produce exculpatory information. The situation is so bad in Clark County that the ONLY cases where the DA's office makes full discloser is in cases where the district judges, who were former prosecutors with the office, order complete disclosure because they know that the open file policy is a fraud. The situation is so bad in Clark County that the District Attorney's Office, in addition to failing to disclose Brady material, will affirmatively elicit the non-receipt of benefits from state witnesses on direct examination because they are so confident that they will not be caught in their lies. The problem is systemic because the former Chief Deputies of the DA's office have institutionalized an ethic of concealment. To take only the most obvious example, former Chief Deputy District Attorney Melvyn Harmon has had several capital cases that he personally prosecuted that have been reversed for failure to disclose Brady evidence. See State v. Bennett (capital case), Lay v. State (case tried as capital case), Jimenez v. State (capital case). Mr. Harmon defended his actions by using made up excuses like the assertion that he failed to disclose evidence because he did not believe it was admissible in court. In summary, the problem with the Clark County District Attorney's Office and its failure to disclose Brady evidence is systemic and is a common practice. I look forward to obtaining reversals in all of my capital cases on the same grounds. PS - all of the allegations above are contained in legal pleadings that the DA's office has never attempted to address in its opposing pleadings.

    Damn that was depressing 'Dave'. I suppose we'll still get snarky trolls telling us in no uncertain terms that 'they're all scum and deserve to die horrible deaths.' Even the innocents. Let'em all burn if we can just prevent 1 drug crime in 1000, it'll all be worth it right? What the hell is this country coming to anyway?

    Dave: How long has this problem existed in the CCDA? Is it just since David J.J. Roger was promoted by election from ordinary prosecutor to God-like DA status? The reason I ask is because the previous DA was Stu Bell, and when I worked with him he was a defense attorney. I guess I still cling to the belief that defense attorneys are more apt to follow the rules than prosecutors, having been there themselves.

    Although I must admit that getting any real data from Metro has always been pretty much impossible

    In 2000 Rick Tabish and Sandy Murphy were convicted of the murder, robbery and grand larceny of Ted Binion in Las Vegas, Nevada. In 2003, their convictions were overturned on appeal by the Nevada Supreme Court. In November 2004, the defendants were acquitted of murder of Ted Binion but convicted of robbery and Grand Larceny. A motion for a new trial on the Grand Larceny is being filed because a major witness lied during the November trial.. The sentencing date is scheduled for January 28th 2005, if a new trial is not granted.. In December 2003, Tony Serra Esq. representing Rick Tabish filed a Post Conviction Writ of Habeas Corpus regarding the convictions regarding Leo Casey. The Prosecutor misconduct issues contained in this Writ were not addressed in his direct appeal when it was heard in 2002, therefore the Nevada Supreme Court did not hear all the legal issues regarding the Casey convictions. If the high court had heard all of the legal issues concerning these convictions regarding Casey the convictions may been over turned and Mr. Tabish would have received a new trial. It is also important for you to know the co-defendants in the extortion case were offered a plea bargain in which they did not have to admit guilt and received a $2000 fine. Mr. Tabish received 72 months on one conviction and 120 months on the second conviction. The sentencing of the co-defendants were not in proportion, to the sentence Mr Tabish received. The extortion and use of a deadly weapon ( a phone book) were against a Leo Casey. All the witnesses who testified in the trial in 2000 testified Mr. Casey did not have one scratch, abrasion, or contusion and his clothing was not dirty. If Mr. Casey was beaten for over an hour, and in his sixties, why didn’t he suffer one scratch, why weren’t his clothes covered with dirt. If you visit my website, Desert Justice you will learn that Casey has been convicted of fraud on numerous occasions. If you read the court transcripts from the trial in 2000 you will learn that Casey used three SSN’s one of which was from a person who died, he owed three years back taxes to the IRS and was extorting money and equipment from the owner of sandpit in LV, etc. New information was revealed in the trial this year, that Casey owed Rick Tabish $650,000 or a payment set at $40,000 per month. As Tony Serra Esq. Stated in the trial, “ what better motive does Casey have, then to keep Mr. Tabish in jail.” The investigation was headed by a private investigator named Tom Dillard, who was paid $450,000 by the Binion Estate for the arrest and conviction of Rick Tabish. Dillard was sued in 2000 by Mr. Howard Haupt, for withholding exculpatory evidence when he worked as a LV Metro Homicide detective. http://www.lasvegassun.com/sunbin/stories/sun/1997/feb/04/505555496.html?Howard%20Haupt Dillard’s partner, Robert Leonard who testied in both trial, lost a lawsuit in June 2005, for withholding exculpatory evidence in a trial involving Roberto Miranda, who was on Nevada’s death row for 14 years. http://www.lasvegassun.com/sunbin/stories/sun/2004/jun/30/517103185.html?roberto%20miranda The Prosecutor involved, David Roger was elected District Attorney after the first high profile trial. Dillard took this case, with the provision that Roger be assigned to the case as a prosecutor because they are friends. The other prosecutor in this case, David Wall was elected District Court Judge after the first trial. Both used the first high profile trial win in their campaigns. Now it has been learned that there are widespread complaints of Prosecutor Misconduct since David Roger became District Attorney. http://www.lasvegassun.com/sunbin/stories/sun/2005/jan/11/518109256.html When the Post Conviction Writ regarding Prosecutor Misconduct was filed, it was immediately sealed by Judge Joseph Bonaventure and has remained sealed until this day. The usual procedure for that District Court is for a hearing to be scheduled within 14 days. Mr. Tabish’s Writ has been sealed from the press for over one year, why? Is it to protect the reputation of David Roger the DA? I have researched the internet and been unable to find one other defendant who had his/her post conviction writ sealed by a Judge for one year. I did find Dave's post above to be very intereting. On the day, the verdicts were read, Mr. Serra’s co-counsel were asked if they had any other pending legal matters and they stated the sealed Writ still needed to be heard. Judge Bonaventure stated that “ he may or may not hear the Writ on January 28. 2005 at sentencing,. The District Court Judge has a legal obligation to hear Post Conviction Writs according to the rules set forth by the Nevada Supreme Court. All persons convicted of any crime have due process and constitutional rights, to file Post Conviction Writs and the courts have a duty to hear and rule on these legal documents. Now the State has stated in the local newspapers they want to use the convictions regarding Casey and ask Mr. Tabish be declared a habitual offender, and sentenced to more time. This is not only unfair, but violates Mr. Tabish’s due process rights, because the post conviction Writ has never been ruled on by Judge Bonaventure. Mr. Tabish deserves the same rights that any other defendant has and the fact he was involved in the high profile case, does not diminish his rights under the law. I am asking people to take a few minutes and write Judge Joseph Bonaventure and request he unseal the Post Conviction Writ and schedule a hearing on or before January 28th. Our courts are obligated to hear all motions legally filed and to rule on them. Our courts are not to be cloaked in secrecy and Writs/Motions sealed and hidden from public view. You can reach Judge Joseph Bonaventure at the Clark County Courthouse, 200 S Third Street, Las Vegas, Nevada 89115. Thank You

    Amazingly, someone will always defend the Wrong Doer, but often the Issues are never addressed. Instead, they get side-tracked by attacks upon the Messengers of the News. I wonder though, when the Innocent will get Justice! Are we to believe, the Prosecutors of our Nation are working very hard to simply Rationalize their Jobs and not just perform them. Our Justice System seems to have lost sight of the Search for Truth, but hide it instead! The whole project of Justice seems to be heading in the direction of Jailing all of Society. Who then, will pay the Taxes?

    Important to remember that due process, fair and even-handed process, is more important than any one case or conviction. Our criminal justice system fails to remember this regularly. Doesn't matter if you want to talk the specifics of confessions in Chicago, police work in Tulia, prosecutor functions in Nevada, lab work at the FBI or Houston, treatment of detainees - the bigger message is that our criminal justice system is not adhering to high ethical standards. Patrick may be an exceptionally ethical cop. I hope that is true. But if he fails to recognize there is a systemic problem, he may be standing a little too close to the trees to see the forest. Tell us, Patrick, have you ever witnessed police or prosecutor work that you thought was unethical? If yes, what did you do about it?

    If the problems are as systematic as outlined in the intial post, as well as the post by Dave, then the Mayor of Las Vegas has no authority to do anything People who have concerns need to contact the Nevada Attorney General or the Justice Department and ask for a formal investigation. Otherwise the politics of Las Vegas are going to interfere with getting anything ackomplished.

    I agree with Darlene. Unless people file complaints with the Attorney General in Nevad, then nothing will be done. People who live in Las Vegas know how powerful the political system is. David Roger used the Binion case as a stepping stone to become District Attorney, everyone in Vegas knows this. I have followed this case for four years. Roger was assigned that case in 1998 and all of his other case load was removed. I have never heard of another case, in which a Prosecutor was assigned to just one case. Roger worked on this case for over three years and won the election because of the convictions in the first trial. I don't know how many people have followed this case, but there was certainly prosecutor misconduct that occurred. Now he is making excuses for the same kind of conduct from his prosecutors. Lawyers in Las Vegas can't resolve all the problems individually, they are going to have to form a group and if a lawsuit is filed, that may be one way of resolving the problems. However, I do feel that a formal investigation should be requested. Perhaps the defense lawyers should sign a petition and request the Nevada Attorney General or the Justice Department to do a formal invesigation. My advice to Dave, don't try to win each case individually but to get the defense lawyers together and try to fix the system problems so that your client's constitutional rights are not being violated in the first place. To many defendants are sitting in prisons waiting for the appeal process, and then if that dosen't work, waiting for a Habeas Corpus to be heard and this can take years. The best solution is to solve the problem.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#17)
    by Patrick on Thu Jan 13, 2005 at 10:14:01 AM EST
    I've seen many things I disagree with. Defense attorney's citing strategies that couldn't possibly be the case and calling lying witnesses to the stand. I've seen prosecutors declining cases that should be filed and cases not properly addressed because of "budget" issues, ect. I've never witnessed a cop commit or a prosecutor commit a crime. I've seen plenty of ethical lapses and mistakes and I've done IA work and still do when necessary. I have no problem with taking corrective action when it's appropriate.

    Re: Nevada Authorities Accused of Routinely Hiding (none / 0) (#18)
    by ron on Fri Jan 14, 2005 at 09:18:23 AM EST
    Prosecutors take an oathe of office and are suppose to protect the rights of victims as well as protect the contstitutional rights of defendants. Prosecutors frequently do anything it takes to win a case including allowing witnesses to testify knowing that their testimony is false. yes there may be some defense lawyers who will do anything to try to win their case, but there are also hundreds of prisoners in prisons who are innocent. The problem is that many people believe just because someone is arrested they are guilty and this is not true. There are many defendants who have been wrongfully convicted, in fact over 100 have been released from death row because DNA has proven their innocense. It may not be a crime for a prosecutor to knowingly use false testimony, not turn over discover etc. but it is unethical and a violation of his/her oathe of office. It is my opinion that many people are now forgetting the importance of the constitution and the protection of a defendant's rights. There are unethical prosecutors, who are guilty of prosecutor misconduct. I suggest people read the prosecutor misconduct study conducted by the Center for Public Integrity that lists specific examples of misconduct by state. Defendants are not guilty until proven innocent although that seems to be the way the justice system works today.