Defense Strategy #2:
Counter Every Prosecution Expert Witness with Your Own (Continued)
The Second Ted Binion Murder Trial (Continued)
The Verdicts and Sentences from the First Murder Trial (May 18, 2000)
On May 10, 2000, the twelves jurors retired to begin deliberations. They emerged eight days later with verdicts that shocked no one, including the defendants – guilty on all charges, including first-degree murder.
Specifically, had this been California, Sandy Murphy and Rick Tabish's convictions would have been for the following California Penal Code violations:
- First-Degree Murder at California Penal Code section 190. (Alternatively, First-Degree Murder with Special Circumstances/Capital Murder (Murder for Financial Gain) at California Penal Code section 190.2);
- Conspiracy to Commit Murder at California Penal Code section 189(e);
- Grand Theft at California Penal Code section 487; and
- Conspiracy to Commit Grand Theft at California Penal Code section 182 (California’s general conspiracy statute).
In any event, Murphy and Tabish's respective sentences were quickly handed down – life with potential parole. For Murphy, she wouldn’t be eligible for parole until she served almost twenty-three years, and for Tabish, a full quarter-century before that might happen.
Had they been convicted in California, they would have received one of the following possible sentences (for First-Degree Murder):
- Twenty-five years to life in prison with the possibility of parole -- see California Penal Code section 190(a);
- Life in prison without the possibility of parole -- Pen. Code section 190(a) (can include First-Degree Murder with Special Circumstances/Capital Murder);
- Death penalty -- Pen. Code section 190(a) (Capital Murder only).
The bad news for Tabish didn’t stop there. As part of the same murder trial, he had also been tried for the kidnapping, beating, and extortion of Leo Casey, as well as the attempted theft of Ted’s silver vault, and was found guilty of all those counts as well – specifically, burglary, grand larceny, and conspiracy.
Ultimately, these convictions would cost him eleven years of his life in a Nevada penitentiary (even with good behavior).
The Casey charges were cemented when Ted’s two accomplices in the extortion plot, Steve Wadkins and John Joseph, flipped and testified against him, for which they received no jail, a few hundred hours of volunteer work, and a small fine. See encyclopedia.com.
Aftermath of the First Murder Trial – The Appeal
Immediately after the jury’s decision was rendered, both Murphy and Tabish were remanded to the jail authorities. But whereas Tabish was quickly shipped off to a state prison, a wealthy and older local businessman posted Murphy’s $300,000 bond within days of her attorneys filing a notice of appeal of her conviction.
However, because of numerous violations of her bail terms – such as repeatedly leaving home detention without permission – she was eventually returned to jail. See LATimes.com.
The appeal, not surprisingly, took years to be decided. But incredibly, on July 14, 2003 (more than three years after the guilty verdicts), the state supreme court ruled in their favor, overturned the convictions, and ordered that both Murphy and Tabish be retried on the murder charges. It was an extremely close call, with the supreme court justices voting four-to-three in their favor.
The Nevada Supreme Court cited several reasons for their stunning opinion. First, the majority believed that the trial court judge had unduly prejudiced Tabish by allowing the Casey charges to be tried with the murder charges.
In other words, the supreme court felt that the jurors had been inclined to believe Tabish was guilty of the murder simply because the evidence against him in the Casey extortion plot had been so strong (namely, the combined testimony of Casey and Tabish’s confederates).
In opposing Tabish’s appeal, the Clark Co. DA’s Office argued that evidence of the Casey extortion was relevant and necessary for the Ted-murder jury because the latter established the motive for the former.
Specifically, they argued that Tabish had wanted to murder Ted to obtain money that he would then use to run the gravel pit on his own. But the supreme court (again, in the majority opinion) held that this motive was far too tenuous.
Further, as the Chief Justice wrote in his opinion, the Casey charges and evidence against Tabish unfairly and prejudicially spilled over into Murphy’s case and, therefore, should have been inadmissible. See LATimes.com.
The second reason that the supreme court cited was the overly prejudicial testimony of Ted’s estate lawyer, James Brown – specifically, his claims to the jury that the night before Ted’s alleged murder, Ted had told him that Murphy should be taken out of his will, and that if she didn’t “kill me tonight, [and] if I’m dead, you’ll know what happened.” See findlaw.com.
The Second Ted Binion Murder Trial
Tabish’s Parents Hire Tony Serra
By the time the Nevada Supreme Court’s ruling was handed down in July 2003, I had just finished my first year of law school and had just started clerking for Tony Serra one month earlier.
Tabish’s affluent parents wanted the best criminal defense attorney on the West Coast, but they didn’t want some slick, aggressive, overly polished egomaniac to defend their son at the retrial – they had learned that the hard way the first time around that hiring someone like that could blow up in their face. So I give them great credit in choosing Tony.
Now I mentioned in an earlier article about Tony’s various claims to fame but I never explained how he picks which cases to take on. And believe me, out of every ten prospects, he maybe picks one, and it’s never because of money, which he always considered to be the root of most evil in the world.
Instead, he picks only those cases which trigger his deeply ingrained sense of justice. He sincerely believed that Murphy and Tabish had been railroaded – not just by the Clark Co. DA but by Ted’s older sister, Behnen, and the Binion money machine.
Tony was nothing if not a bully-slayer, and he particularly loathed when criminal convictions were purchased through money, power, and politics. The prosecution in the second trial – and Behnen herself – had no idea what was going to hit them.
One of Tony’s great strengths – despite his unbelievable track record of unwinnable courtroom victories – is that his prosecutorial adversaries – at least the ignorant and arrogant ones – always seem to grossly underestimate him because of his appearance, demeanor, and spaced-out reputation.
But after his opening statements in any particular trial, the less savvy would be utterly discombobulated. But the savvier assistant district attorneys would be stunned because they saw firsthand how he almost instantaneously bonded with the jury.
The jurors would be leaning forward every time he spoke, almost imperceptibly nodding every time he made an emotionally profound point. He seemed to have the innate ability to elicit every injustice done to them, and that this trial was now – finally – their chance to make things karmically right in the universe.
And maybe the savvier prosecutors noticed the judge him/herself was captivated by Tony’s incendiary rhetoric. I remember thinking more than once that Tony would have been perfectly at home orating before the Senate in ancient Rome, where his emotional theatrics would have been equally revered.
In any event, despite the large number of other law clerks who worked in Tony’s office, mostly for a half-dozen other attorneys there, he chose me to work with him on the second trial. I like to think it’s because he saw in me a kindred spirit – a nascent champion of the underdog – a true believer. It was a truly unexpected honor – an experience that I cherish to this day. See cbsnews.com.
The Second Murder Trial Commences (October 11, 2004)
Nothing in the second trial would even remotely resemble the first. In my humble opinion, although Tony was only representing Tabish, he won the second trial for Murphy as well by the time he finished his opening statement.
As I’ll flesh out in far more detail in an upcoming article about one of Tony’s other famous – and famously successful – murder trials (involving Patrick “Hooty” Croy), Tony is a master at bringing an entire local region’s tarnished history to bear in a court of law.
Here, he laid out the outsized influence and power that the obscenely wealthy Binion family had enjoyed over Las Vegas authorities since they arrived from Texas 54 years before the convictions of Murphy and Tabish in the first trial.
He excoriated Ted’s older sister, Becky Binion Behnen, in particular for the lavish amount of cash she had thrown around to ensure the defendants would be found guilty. He lambasted her in his stentorian voice for hiring a PR team, which, among other things, constantly put her on TV – both locally and nationally – to poison the potential jury pool.
Finally, he attacked her for essentially putting out a wanted poster, effectively offering quasi-bribes to anyone who could provide incriminating evidence against the defendants. See CNN.com.
The best part of Tony’s opening, I thought, was when he compared the Binions to a royal family in feudal England who held such sway over their kingdom that they could bend and subvert the law to their own will, which is what he claimed the Binions had done here – including by having their own expensive P.I., Tom Dillard, feed the detectives and DA’s investigators self-serving “evidence”.
Then Tony turned his prodigious guns on Dr. Michael Baden, whom he portrayed as a multi-millionaire charlatan who would happily conjure up even the most outlandish murder theory if the price is right – and Behnen, he gesticulated, was more than happy to pay him an outrageous sum to do so here.
Tony openly mocked Dr. Baden’s ludicrous “burking” theory, and promised that the defense’s own experts would readily and thoroughly discredit every farfetched “theory” the hired-gun-Baden had contrived. See LasVegasSun.com.
The Defense’s “Counter-Experts”
Tony’s cross-examination of Dr. Baden had been truly withering. He had had reduced him in the eyes of the jury from a previously unassailable expert to a virtual laughing stock for his belief that the defendants must have read about the burking murder method in some ancient text.
Following that, Tony presented our experts. Unlike Dr. Baden, these were serious academics, highly respected pathologists, who were nothing like the globe-trotting, media-hound Tony made Dr. Baden out to be in front the increasingly cynical jury.
Indeed, Tony called a total of nine experts to counter Dr. Baden’s sole testimony – nine individuals who all agreed Dr. Baden’s burking theory was ludicrous and specifically tailored to meet the DA’s evidence (or lack thereof). Their combined testimony underscored Tony’s argument that the county’s Chief Medical Examiner had changed his final report to suit the Binions and their so-called expert’s opinion that Ted had been murdered.
Specifically, our experts testified – and pointed out evidence – that the “lesions” on Ted’s chest that had supposedly been caused by someone pressing on his chest so hard that his shirt buttons had damaged his skin – were far more likely to have resulted from dermatitis, skin cancer, herpes, or burns from Ted’s tinfoil “pipe” which he used to inhale heroin.
The experts also testified that the redness around Ted’s nose and mouth had not been caused by suffocation, but either from dermatitis or simply from shaving.
The experts also testified that the combination of heroin, Xanax, and Valium had in fact been more than sufficient to cause Ted to overdose and die – just as the Chief Medical Examiner had initially believed as memorialized in his first autopsy report.
And that was it. After Tony’s masterful performance, wherein he turned the tables on the prosecution by showing them to be lowly pawns of the Binion money machine, the jury was now seeing the case in a completely different light than the jury at the first trial. See LATimes.com.
The Prosecution’s Closing Arguments
The lead prosecutor seemingly backpedaled from his original murder theory in response to our experts’ testimony. Now, however, he told the jury that it didn’t matter what theory of murder they believed – i.e., whether the defendants killed Ted by smothering him or by overdosing him or both – so long as they believed he had in fact been murdered.
To the jury (and certainly to me), this seemed like a tacit acknowledgement that the prosecution’s evidence – i.e., Dr. Baden’s sole testimony – had been less than air-tight (read: reasonable doubt). See helenair.com.
Tony Serra’s Closing Arguments
Tony did an excellent job of summing up evidence that eviscerated the DA’s claim that Tabish’s motive for murdering Ted had been money – specifically, that he had been in dire financial straits and, therefore, was desperate enough to kill to pull himself out of the red.
But Tony summarized the evidence he had presented earlier that Ted had actually started the process of selling his trucking company just before Ted’s death for a great deal of money – enough not only to pay off all his debts, but to net himself almost $700,000 profit. (And in fact, Tabish closed this deal two months after Ted’s death.)
Tony also highlighted the fact that Ted had been working closely with the IRS to favorably resolve his tax problems at the time of the death.
He left the jury with one final thought – the entire prosecution rested on the word of a bought-and-paid-for snake-oil salesman, Dr. Michael Baden, who had apparently lifted his murder theory straight out of some pirate dime novel in the 18th century. In other words, it was all pure fantasy. See LasVegasSun.com.
The Verdicts (November 23, 2004)
After yet another six-week-long trial, this second jury returned their verdicts after deliberating for just over three days: not guilty of murder for both Murphy and Tabish. Murphy burst out sobbing while Tabish remained stoic, though clearly relieved.
Unfortunately, however, the jury still found them both guilty of having conspired to rob Ted’s silver vault – specifically, of conspiracy, grand theft, and burglary (all felonies). The evidence against Murphy had included her multiple calls to Ted during the vault excavation, as well as the fact that she had bailed out Tabish and his two accomplices after their arrest for the attempted burglary.
As for Tabish, the jury didn’t believe Tony’s arguments that Tabish had simply been removing the silver to hand over to Ted’s daughter per Ted’s wishes. It was admittedly a long shot that didn’t pay off. Nor did the jury believe Tony’s argument that Tabish could not have possibly intended to illegally move the silver because the vault was located on the busiest street in town, right next door to a fast-food restaurant. See LasVegasSun.com.
The prosecution was shocked by the verdicts, and spent considerable time polling the jurors. They confirmed that our experts had convinced them that the lesions on Ted’s chest were anything but button indentations. Another juror summed it up as follows: Tony had done “a good job of muddying up the cause of death." See NYTimes.com.
Aftermath of the Acquittals
In the meantime, with credit for time served and good behavior, Murphy was released four weeks after the verdict, while Tabish went back to serve another six years.
Murphy was sentenced to time served and did not return to prison. However, excepting the brief time she had bonded out on appeal, she had spent 3.5 years in prison. As for Tabish, he wouldn’t see daylight until May 18, 2010. See missoulian.com. See also OrangeCoast.com.
I always thought Murphy was sharper than many people believed her to be. She proved me right when she resurfaced several years later in Laguna Beach, where she met, fell in love with, and married the owner of one of the most successful art galleries in Orange County.
Since 2006, she has lived the good life – happily married and luxuriating on Southern California’s “Gold Coast” and proving to be an outstanding art dealer. I might just pop in and say hello once this pandemic is over. But then again maybe not – I doubt she wants to be reminded of the bad old days. See OrangeCoast.com.
Tabish also appears to have made out okay after finally leaving prison. He went straight home to Montana, where he was reportedly working off his $3 million debt to his family (in their thriving oil business) for fronting his legal expenses for both trials and his appeal.
Ironically, Behnen lost her beloved casino and hotel after federal authorities alleged that the Horseshoe bigwigs (presumably including Behnen) siphoned off millions of dollars from their employees’ unpaid pension and health-care funds.
As a result, Behnen was forced to sell the Horseshoe, including its World Series of Poker tournament, to Harrah’s for $20 million in profit. And so ended an old-school era that lasted more than half-a-century in Las Vegas. See LasVegasAdvisor.com.
What’s Coming Up in My Next Article
Please read on to get my analysis on how countering the prosecution’s experts with the defense’s own helped the Tiffany Li, the “Hillsborough Heiress”, secure her own acquittal for first-degree murder. I’ll also begin discussing how having a solid alibi is inarguably the best possible defense you can present to the jury in a murder trial.
The Los Angeles Criminal Defense Attorney Law Firm (LADALF)
Since beginning her first year of law school in the fall of 2002, as of this writing (December 2020), Ninaz Saffari, LADALF’s leading attorney, has devoted almost two decades of her life exclusively to the study and practice of criminal defense. She has represented thousands of defendants in cases ranging from misdemeanor domestic violence all the way up to multiple capital murder charges.