Mar. 08, 2009
PROSECUTOR PRACTICE: Witnesses often get paid, shocking defense community
Defense attorneys say $50 led woman to change testimony
By CARRI GEER THEVENOT
LAS VEGAS REVIEW-JOURNAL
When Rodkesha Thomas received $50 cash last year from the Clark County district attorney’s office, the crack addict had one thing on her mind: getting high.
And that was all the incentive she needed to lie for the prosecution at a robbery trial four days later.
Prosecutors say they routinely pay a $25 fee, plus mileage, to any witness who meets with them before trial. That news shocked members of the defense community, who argue that the practice violates the law and could be violating their clients’ rights.
“There are people who are broke, or who are homeless, or who are drug addicts who need a fix, and for whom $50 could potentially alter their testimony,” Clark County Public Defender Philip Kohn said. “And for that reason, we should know about payments so we can ask them that question and the jury can make that determination: Did $50 change or influence their testimony?”
Defense attorneys Daniel Bunin and Dayvid Figler said they didn’t know about the pretrial payments until they met with Thomas in January at the Las Vegas Detention Center.
The 23-year-old woman told them she had testified falsely against their client, robbery suspect Thad Aubert, after a Clark County prosecutor had handed her an envelope with $50 cash.
Bunin and Figler were skeptical at first. But a few days after they met with Thomas, Deputy District Attorney Michelle Fleck confirmed on the witness stand that her office had paid the woman for attending a pretrial conference.
“And we always do that with every witness when they come for pretrials,” Fleck testified.
Aubert’s lawyers have spread the word ever since.
“We started asking all these defense attorneys, and nobody knew about it,” Bunin said.
Assistant District Attorney Christopher Lalli said his office makes no secret of the payments.
Lalli, who joined the district attorney’s office 15 years ago, said Clark County prosecutors have been paying witnesses to attend private pretrial meetings as long as he has worked there. There’s no reason defense lawyers can’t do the same, he said.
“I think the statute allows and/or requires it,” he said.
Special Public Defender David Schieck said Lalli must say that because he can’t interpret the law one way for the prosecution and another way for the defense.
“Sometimes when we go out and even try to interview witnesses, we get accused of witness tampering,” he said.
Other defense attorneys expressed similar sentiments.
“If the shoe was on the other foot, they would put us in jail for something like that,” Assistant Federal Public Defender David Anthony said.
According to Nevada law, a witness is entitled to a $25 fee “for attending the courts of this state in any criminal case, or civil suit or proceeding before a court of record, master, commissioner, justice of the peace, or before the grand jury, in obedience to a subpoena.”
Numerous defense lawyers interviewed for this article, as well as a staff attorney with the American Civil Liberties Union of Nevada, said the statute clearly applies to court appearances — not private meetings with prosecutors.
A Clark County judge has said prosecutors are interpreting the law incorrectly.
But Lalli, head of the office’s criminal division, pointed to a section of the statute that says witnesses are to be paid the fee “for each day’s attendance, including Sundays and holidays.”
Courts don’t meet on Sundays and holidays, Lalli said. “That’s when people are preparing for trials.”
Records show that the Victim Witness Assistance Center, a unit within the district attorney’s office, paid out nearly $652,000 in witness fees in fiscal 2008. About one-third of that money went to law enforcement agencies. The rest went to lay witnesses.
The records do not differentiate between fees paid for court appearances and fees paid for pretrial conferences.
“I don’t really make a big distinction between those two things in my mind,” Lalli said.
To him, all the uproar over a $25 fee is much ado about nothing.
“Some suggestion that someone is going to come in and perjure themselves for $25 is somewhat ludicrous to me,” he said.
But testimony in the Aubert case suggests that’s exactly what Thomas did.
Thomas testified for the prosecution in 2008 at Aubert’s first trial, which ended in a hung jury. Bunin and Figler were appointed to represent him at his retrial, which ended in February with an acquittal. Thomas exercised her Fifth Amendment right against self-incrimination at the second trial and did not testify.
While preparing for the retrial, Bunin and Figler met with Thomas, who was held at the Las Vegas jail in a prostitution case. Thomas told them she lied at Aubert’s first trial because she was afraid of the prosecutors and because they gave her money, Bunin said.
When Fleck confirmed the $50 payment in court, Bunin and Figler asked District Judge Michael Villani to dismiss their client’s case based on prosecutorial misconduct. The next day, Feb. 3, Villani heard testimony on the issue.
Thomas testified again during the evidentiary hearing, describing how an investigator with the district attorney’s office found her before Aubert’s first trial at a crack house in downtown Las Vegas.
According to testimony at the evidentiary hearing, she met with Fleck a few days later and walked away with $50 cash, which included a $25 witness fee and $25 for a taxi. She received a separate $25 payment for testifying at Aubert’s first trial.
At the February hearing, Thomas said she recently had met with representatives of the district attorney’s office, including Fleck, at the jail and told them she was changing her story about the robbery.
“Why did you tell them that you lied the last time?” Figler asked her.
“Just so I could get out of the office and get my money and go smoke crack,” Thomas replied.
“And you’re saying that the $50 cash that was given to you was used for what purpose?” Figler asked.
“I wanted to go buy some dope,” said Thomas, who admitted she was high during a pretrial conference with Fleck last year and when she testified at the trial four days later.
Although the word “taxi” was written on a voucher for the $50 payment to Thomas, she testified she didn’t need a taxi because her boyfriend had taken her to the meeting.
Records show that the Victim Witness Assistance Center made mileage payments totaling about $299,000 in fiscal 2008. This fiscal year, the center has a $1.7 million budget to cover all witness fees and travel expenses.
Villani ultimately denied the motion to dismiss Aubert’s case, but he ruled that the statute pertaining to witness fees “does not apply to a pretrial conference.” The ruling applied only to the robbery case and will have no immediate effect on future payments.
Bunin is considering pursuing the issue in federal court.
“We’re looking into options,” Bunin said. “It’s possible that our client’s civil rights were violated when the information about the payment wasn’t disclosed prior to trial last year.”
Lalli said the statute provides a “modest way” of reimbursing witnesses who often must take time off work to meet with prosecutors. Without the payments, “we would have situations where witnesses would be unable to talk to us before court proceedings, and I’m sure that’s something the defense would like.”
Defense lawyers also have to prepare their witnesses, Kohn said. “We just don’t pay them, because the law doesn’t allow it.”
Figler said witnesses often hesitate to speak to defense attorneys in criminal cases. “Had we known there was this option of compensating them in cash for the inconvenience of coming into our office, maybe more might have come in, especially those to whom $50 is a lot of money.”
But Figler and Bunin both said the law doesn’t permit that. “Especially without disclosure,” Figler added.
Kohn and other defense attorneys also questioned whether prosecutors are paying witnesses for multiple pretrial meetings.
To that Lalli responded, “I don’t think we’ve got rogue prosecutors out there who are doing this.”
And Assistant Federal Public Defender Michael Pescetta wondered aloud whether prosecutors ever withhold fees for witnesses who show up for pretrial meetings and fail to provide information that helps the prosecution.
Kohn doesn’t believe that paying witness fees for pretrial conferences is a good use of public funds. But he said the Nevada Supreme Court may have to settle the more important question of whether Clark County prosecutors have been following the law.
“The whole judicial process is built on the concept that the truth will come out under cross-examination and through the adversary system. And if we don’t have all the information to develop a proper cross-examination … that robs the jury of crucial information upon which they can derive their verdict.”
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