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In business courts attorneys cry foul over DA paying witnesses, destroying receipts By Bethany Barnes staff writer 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 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, which she reportedly used to buy crack cocaine. 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 DA 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 DA's Office burns the receipts, defense attorneys Dayvid Figler and Daniel Bunin argued during a two-week trial last month. Clark County District Judge Elissa Cadish agreed. Cadish instructed jurors they could view the witnesses as less credible because the DA'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 DA's Office said there was no way see how much witnesses had been paid because the handwritten records had been destroyed. The 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." | 4 NOVEMBER 2013 20131104_VI09_F.indd 9 | 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. Prosecutors viewed raising questions about the payments as pointless shenanigans in an unwinnable case for the defense. The jury saw it differently. On Oct. 7, a jury acquitted Gary T. Miller of 24 counts, which included charges of first-degree kidnapping and sex assault with a minor under 14. 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. Celebrating Law Firm Growth Strong Apart, Stronger Together LEWIS ROCA ROTHGERBER Effective September 2013 Lewis and Roca has joined forces with Rothgerber Johnson & Lyons to become Lewis Roca Rothgerber. Effective September 2013, the combination creates one of the largest law firms in the Western U.S. with 250 lawyers across nine offices. The combined firm offers an enhanced and expanded range of services in litigation, real estate, energy and utilities, banking, insurance, intellectual property, gaming, and religious institutions. Because together we're stronger. Visit: www.LRRLaw.com/lewis-roca-rothgerber ALBUQUERQUE | CASPER | COLORADO SPRINGS | DENVER | LAS VEGAS | PHOENIX | RENO | SILICON VALLEY | TUCSON | LRRLAW.COM 9 10/31/13 11:25:37 AM