Wednesday, June 16, 2004

Dream Team shattered


Celebrity attorney Dick DeGuerin departs from the Binion murder case. Now what?

By Cathy Scott
Artwork by Paulette Frankl


Every once in a while a trial comes along that transcends the event itself and becomes larger than life. Such is the case with the Ted Binion homicide trial.

A circus atmosphere evolved during the first trial in 2000. Now, it's happening again with the retrial, set for October in Clark County Judge Joseph Bonaventure's downtown courtroom. It has evolved into Nevada's caus celeb homicide case, with fodder for gossip columnists. During the first trial, spectators lined up outside the courtroom in hopes of landing a seat in the small gallery.

The latest turn of events has spurred even more headlines and, with it, more public attention now that half of the legal Dream Team has quit. Client Sandy Murphy's defense -- at least for now -- is seemingly in limbo.

Celebrity attorneys Dick DeGuerin and J. Tony Serra for months have been representing co-defendants Murphy and Rick Tabish in preparation for the retrial. But the Dream Team was shattered June 4 when DeGuerin pointed a finger at "non-lawyers" working on Murphy's defense strategy. As a result, DeGuerin announced he would no longer represent Murphy, and informed the judge of his decision the same day.

DeGuerin, a mild-mannered Texas rancher who carries a Stetson and wears leather cowboy boots to court, is well known for his successful defense style. The State Bar of Texas in 1994 named him "Outstanding Criminal Defense Lawyer of the Year."

Serra, a radical pony-tailed criminal and civil-rights lawyer from San Francisco, has also passionately fought -- and won -- the best of them.

But don't let appearances deceive you. They're the stuff from which legends are made. Between them, they have more than 70 years of trial experience. Now, with DeGuerin out, the pair as a Dream Team will have to wait for another trial and another day.

Before DeGuerin quit, Serra had this to say about their teaming up: "We're going to compliment each other wonderfully. We have common interests. I'm extroverted and he's kind of professorial. I think the combination of those two personas can work very well. I'm kind of like the circus barker. He's genteel."

But that was then. This is now.

"As I said in court, I'm very aware of my professional responsibilities to my client," DeGuerin said during a telephone interview, "and when I exercise my judgment and strategy, I expect that to be what I'm hired for. If that gets overruled by other persons, then it's time for me to pull out.

"I have no disagreement with Sandy. I don't have any problems with [her Las Vegas attorney Michael] Cristolli. [But] I'm not going to simply be someone's messenger and file motions that are counter-productive."

To be heard before trial, pretrial motions needed to be filed June 7. DeGuerin quit three days before that, as the final motions were being prepared, apparently in part, by non lawyers.

When asked if during his time on the case he'd been the one in charge of Murphy's team, DeGuerin said, "That's the problem. I thought I could take charge. I couldn't."

So who, instead of DeGuerin, has muscled in? "I don't want to go into details about a non-attorney in the office," DeGuerin said, "but it's a matter of principle with me. Either I'm going to be the lawyer who makes the decisions, and my decisions are going to be implemented, or I'm not going to be the lawyer." DeGuerin added that Murphy "isn't happy" with his decision.

He also noted his disappointment that Alan Derschowitz, also considered a top-notch attorney, had not continued on Murphy's team. Derschowitz was responsible for preparing appellate motions in the case presented to the Nevada Supreme Court, which in 2003 overturned Murphy and Tabish's murder convictions from the first trial.

Binion died in 1998, seemingly from an accidental drug overdose. Six months later, after Binion's sister Becky Behnen hired a private detective, the coroner's office ruled the death a homicide. Months later, Murphy and Tabish, who'd been having an affair, were arrested and charged with killing 55-year-old Binion.

"I wanted Alan Derschowitz to remain on the case," DeGuerin said. But DeGuerin was overruled on that decision as well.

Unlike DeGuerin, Derschowitz didn't quit Murphy's defense team: "He didn't pull out," DeGuerin explained. "They didn't keep him."

"They," meaning Murphy's financial benefactor William Fuller, a distant cousin to Murphy, and the unnamed people working for him.

"This case should be won," DeGuerin said, "and I was really looking forward to trying the case. I really believe in Sandy. She's made a lot of mistakes in her life, but killing Ted Binion is not one of those mistakes. She's innocent."

The loss of DeGuerin could prove to be a big one for Murphy. That's because DeGuerin is no slouch. Soon after joining the case, the Houston-based lawyer scored a victory when he argued successfully that Murphy should be released on bail while awaiting her second trial. The judge granted $250,000 bail, despite vigorous protests from prosecutors. Murphy, after spending four years behind bars, was released the same day.

In his most recent case, DeGuerin won an acquittal for New York millionaire Robert Durst, even after his client had admitted to killing, then chopping up and disposing of, the victim in Galveston Bay. Durst, in a near-fatal decision a month before his murder trial, asked a Galveston, Texas, judge for permission to fire his defense attorneys, which included DeGuerin. A day later, however, the problem was resolved and the attorneys remained.

In another high-profile case, DeGuerin testified during the 1995 Senate hearings about a standoff in Waco, Texas, that left client David Koresh and his followers dead.

Unless Murphy is able to get another lead attorney with the stature of DeGuerin, Serra will be the lone powerhouse at the defense table. One thing DeGuerin planned to do before the trial - which wasn't done the first time around - was request a gag order. Without it, the leaks from all sides playing to the media will no doubt repeat themselves. The most recent items to hit local gossip columns surrounded Murphy's social life and her outings to the Palms hotel-casino.

DeGuerin quit before he filed the motion.

DeGuerin also said he was planning to address the same issue facing Tabish's team: alleged prosecutorial misconduct during the first trial.

"I think there probably will be some evidence about prosecutorial misconduct in the past trial come out in the second trial," DeGuerin said. "There was a motion filed while the case was on appeal about a witness who was told not to talk to the defense. He was made unavailable to the defense. That's in the court papers."

A hearing addressing the misconduct of prosecutors is on the near horizon for Tabish's team. Serra filed a motion last December laying out specifics. A hearing date has not been set.

With or without DeGuerin, Serra - a counterculture lawyer whose high-profile clients have included Black Panther Huey Newton, Ellie Nesler, who shot her son's molester five times inside a California courtroom, and former Symbionese Liberation Army soldier Russell Little - is working on Tabish's defense as the court date draws near.

"We have nothing to do with the logistics of Murphy's defense team," said Anna Ling, co-counsel in Serra's offices in San Francisco. "It's really none of our business. Legally we can't get involved in what goes on with their defense team."

It's expected that Cristolli will head Murphy's defense team until a new lead attorney is found. Either way, Bonaventure, so far, has kept an Oct. 11 start date.

David Roger, now Clark County's district attorney, prosecuted Murphy and Tabish the first time when he was a deputy. Before DeGuerin pulled out, Roger admitted his deputies have less experience than the defense team.

"There's less gray hair on our side of the courtroom," Roger conceded. "The prosecutors may not be as long in the tooth as the defense, but they're experienced attorneys. They're ready for trial." Deputy district attorneys Christopher Lalli and Robert Daskas have been assigned to prosecute Murphy and Tabish during the second trial.

When asked the differences between himself and Serra, DeGuerin said, "We both have a fighting spirit. We've been in the war for a long time.

"When you get to the position that he and I are both in, you get there by attrition," he continued. "You basically outlast all the other people. You have tremendous respect for them. That's what I have for him. He's not afraid of a hard fight."

DeGuerin was complimentary as well toward Judge Bonaventure.

"I think the judge is going to look at it with a new set of glasses," he said. "He's been nothing but gracious and hospitable to us and our team. We're hopeful we can get a fair jury."

Serra agreed.

"I'm hoping we're going to get a good crack at an honest jury," he said. "It's a winnable case. Of course, there are unknown variables, always. It's a circumstantial evidence case. I'm up for it. I'm looking forward to a jury trial."

Serra has many cheerleaders on his side, even some who once opposed him.

Tom Orloff, an Alameda County (Calif.) prosecutor who lost a Black Panther murder case to Serra in 1979, told the Sacramento Bee that "Tony Serra is a very effective trial attorney - smart, charming, entertaining, impassioned, likeable and delightful to listen to. He uses his voice like a musical instrument."

Sonora (Calif.) Justice Court Judge Doug Boyack, a former Tuolumne County prosecutor who faced off against Serra in the '90s during a murder case, echoed Orloff's sentiments. Boyack remembered Serra for his classic, iconoclastic presence.

"In terms of courtroom performance, examining and cross-examining witnesses, providing pathos in his delivery, I've never seen anyone his equal," he said. "He believes in the process and he revels in going toe-to-toe with the system."

Paulette Frankl, a courtroom artist who for a decade followed Serra from defense table to defense table and became his friend, said she's learned about Serra by sketching him.

"Tony long ago took a vow of personal poverty and vowed never to make money for the purpose of law practice," said Frankl, who has written an unpublished biography about Serra titled Lust for Justice. It includes her courtroom art of the litigator in action. "He vowed never to buy anything new. He has no watch and no fancy clothes."

Serra, in fact, buys his clothes at thrift stores, Frankl said. Often, his coats are too short for his long arms.

"He thrills at spending $4 to buy a suit for court," she said. "His courtroom attire is often a mockery of the high-priced designer suits of his peers. He wears shirts with the cuffs stapled shut and pants torn at the knee and mended from the inside with colored duct tape. The clothes rarely fit - usually a size too small - revealing the muscular outline of his powerful body. His prized possessions are a mountainous soap collection from the motels in cities where he had trials and an ever-expanding collection of noteworthy ties. They hang from crisscrossed lines in Serra's apartment like objects in an art exhibit. He insists, 'It's not what you wear that counts. It's who you are.'"

Serra's noncomforming style and radical 1960s cases inspired the 1988 James Woods film True Believer, which depicted Serra fighting to exonerate a Korean man in a Chinatown gang murder case.

When Choi Soo Lee, a Korean, was involved in a 1978 prison killing, his lawyers tried to overturn the original conviction that had sent him to prison. Serra took the case in 1982 after an investigation uncovered a witness who'd contradicted previous testimony that Soo Lee had killed the Chinese gang member. Serra proved that police had relied on faulty ballistics tests and witnesses whom, he said at the time, "could not tell a Korean from a Chinese from a Japanese from a Filipino." Soo Lee was acquitted. Although convicted of second-degree murder in the prison case, Soo Lee was credited with time served and set free.

Serra's successes have not gone unnoticed, despite his marching to the beat of a different drummer. He has been acclaimed by California Lawyer Magazine as one of the eight best criminal defense attorneys of the 20th century - along with Clarence Darrow, Thurgood Marshall and William Kunstler.

In 2003, the Trial Lawyers for Public Justice handed him a Lawyer of the Year Award for his $4.4 million win against the FBI in an Earth First car-bombing case. And American Lawyer magazine once ranked Serra the second-best criminal defense attorney in the country for both his handling of the Faez Boukaran murder case and the Soo Lee trial earlier the same year.

Until 2001, Serra's law firm - Serra, Lichter, Daar, Bustamante, Michael & Wilson - was located on Pier 5 at the Embarcadaro in San Francisco. Today, it's in North Beach near Serra's modest rented apartment and the same neighborhood in which Beat poets Jack Kerouac and Allen Ginsberg came of age.

When asked why he took on Tabish as a client, Serra said: "I've done murder cases all my life, my entire career. To have a case that three books have been written about is appealing. The heart of a trial lawyer has to be ego. It appeals."

DeGuerin said he believes Murpy's case has merit and will be won. Before he quit the case, he said he had asked that Murphy and Tabish be tried separately.

"We've filed a severance motion," he said. "I think it's unfair to have them tried together. Having them sit in the same courtroom together makes the prosecutors' job easier, as it did before."

The successful appellate case, DeGuerin said, cleared up misconceptions from the first trial, including the prosecution's theory about Burking, so-named after William Burke who during the 17th century killed victims by putting pressure on their chests as their mouths and noses were covered.

"This bogus theory the prosecution had about Burking has been totally debunked," DeGuerin said. "A button mark on Ted Binion's chest has been shown to be conclusively a sore, a lesion he had. The top dermatologist in the country has shown that. Derschowitz brought it up in the Nevada Supreme Court Appellate Division, along with photographs that destroyed the Burking theory.

"I think there will be a different outcome this time during trial."

Cathy Scott, a Las Vegas-based journalist and author, wrote a book about the Ted Binion case titled Death in the Desert.