Las Vegas Sun

October 24, 2014

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LEGAL ISSUES:

Defense attorneys cry foul over DA paying witnesses, destroying receipts

A controversial practice by the District Attorney’s Office that first came to light in 2009 — paying witnesses to attend pretrial meetings with prosecutors — resurfaced last week in Clark County District Court and could have ramifications in future criminal cases.

Defense attorneys first discovered the practice after a witness admitted she’d lied under oath because she wanted her $50 payment.

Where did she go after she met with prosecutors? To buy crack cocaine, according to news accounts.

A judge ordered a new trial, the defendant was acquitted and the Nevada American Civil Liberties Union and Public Defender Phil Kohn questioned the legality of the payments. The District Attorney’s Office said it was a practice that had been in place for more than 20 years in Clark County.

Newspaper articles about the practice were published. Nothing changed.

Fast forward to 2013 and the attorneys whose case revealed the practice once again threw a fit over witness payments — and a judge and jury took heed.

At issue isn’t the legality of payments, but the District Attorney’s Office’s handwritten records of receipts for the vouchers, which witnesses redeem for cash.

It’s tough to cross-examine witnesses about what they may have received when the District Attorney’s Office burns the receipts, defense attorneys Dayvid Figler and Daniel Bunin argued during a two-week trial that wrapped Monday.

Clark County District Judge Elissa Cadish agreed.

Cadish instructed jurors they could view the witnesses as less credible because the District Attorney’s Office destroyed evidence that would have showed the amount witnesses had been paid.

The county budgets about $1.2 million for witness fees and mileage, said county spokesman Erik Pappa. Last year, the county spent about $860,000 of the budgeted amount.

Figler had called Felizia Hernandez, a victim’s advocate in the office, to the stand after the District Attorney’s Office said there was no way see how much witnesses had been paid because the handwritten records had been destroyed.

The District Attorney’s Office regularly burns witness voucher receipts every three years, regardless of their pertinence to an ongoing case, Hernandez testified.

“It’s not digital. It’s not because we are trying to thwart Mr. Figler and his efforts,” argued prosecutor Mary Kay Holthus. “It’s because we’re the county and we’re the government and this is how we work.”

But according to Pappa, that isn’t how it works.

These records officially belong to the county comptroller, the county’s central coordinating financial agency. The retention schedule calls for imaging and scanning the records so they can be stored electronically and retained for six years.

Bunin said he didn’t understand why the District Attorney’s Office couldn’t produce the records, particularly when the defense filed a motion asking for records of the payments in 2009.

“I don't know if they take these types of requests very seriously over at the DA or if they just think this is the normal way of operating business," Bunin said.

“If they are doing everything on paper, I don't know why they are. They can scan it," Bunin said.

Prosecutors viewed raising questions about the payments as pointless shenanigans in an unwinnable case for the defense.

The jury saw the case differently.

On Monday a jury acquitted Gary T. Miller of 24 counts, which included charges of first-degree kidnapping and sex assault with a minor under 14.

The case had issues beyond the payments.

“If I bought the testimony, don’t you think I would have bought better testimony than that?” prosecutor Parker Brooks joked in the courtroom during a break.

While the destroyed records don’t appear to have been a deciding factor for jurors, it’s the first time the pretrial payment controversy has been stirred up since 2009.

Kohn said he’d assumed the District Attorney’s Office had stopped compensating witnesses for pretrial conferences after the 2009 controversy. Now that Kohn knows the practice is still happening, he’ll be telling his attorneys to ask about payments, he said.

Clark County District Attorney Steve Wolfson said he was concerned about the instruction to the jury and said that he would look into it. He noted he was unfamiliar with the judge’s ruling until told about it by the Sun.

“Hindsight is 20-20. If you knew that it would be an issue in a particular case, then you would go to the extra effort to retain those records,” Wolfson said. “But when we handle literally thousands and thousands of cases every year, I don’t know that it would be the smart expenditure of monies.”

He added he didn’t know enough about the issue.

Wolfson maintained compensating witnesses for pretrial meetings was legal.

Nevada law says witnesses are entitled to $25 for “attending the courts of the State.”

Meetings with prosecutors count as “court business,” Wolfson said, suggesting defense attorneys also could pay their witnesses for pretrial meetings.

Bunin said that might be how Wolfson was reading the law. But if the defense were to pay a witness to meet before a trial, Bunin said he’d expect the attorney would be indicted.

Sentiment among other defense attorneys has been that they’d get in trouble for trying to pay any witness other than an expert witness.

In court, Holthus scoffed at the idea the payment could be viewed as a benefit, saying it would be better characterized as inadequate compensation because testifying often requires the witness put everything on hold.

Defense attorneys, however, say they have a right to know what the payments are.

Kohn said witness payments were relevant to every case.

“They have a system that is broken and they have a policy in place to cover up that system,” Figler told the judge at trial. “When the only people who are controlling their own records destroy them, there’s not much more to be said.”

Bunin's hopes to able to raise the pretrial payment issue with the Nevada Supreme Court. The problem is he and Figler keep winning cases in which they’ve raised the issue, so they can't appeal.

It’s a matter of waiting for the right case to come along, Bunin said, and until that happens he and Figler will still wonder how the payments are justified legally.

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