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In business law quarterly new questions raised about da's witness payment program By Bethany Barnes staff writer Clark County District Attorney Steve Wolfson no longer supports his office's controversial practice of paying witnesses to meet with prosecutors. He's ending the program and calling for an audit of witness payments — though he's no longer talking to the media about why he's abandoning a practice he backed as recently as a month ago. Some of those records shows auditors might find plenty wrong with the witness-payment program. Receipts showing overpayment to witnesses, payments for airfare, hotel stays and meals that went to people who did not testify, and an overall lack of oversight in the program, which has an annual budget of more than $1 million. Defense attorneys Dayvid Figler and Daniel Bunin first exposed the controversial program and won an acquittal for a client in 2009 when a paid witness admitted to lying under oath to fund a crack cocaine habit. But instead of ending the practice then, the District Attorney's Office defended it. The program, | 16 DECEMBER 2013 20131216_VI13_F.indd 13 | which has been in use in Clark County for more than 20 years, continued after Wolfson took office in early 2012. Two months ago, the program again was the focus of a case defended by Figler and Bunin. The case involved their client, Gary Miller, who wound up winning acquittal on 24 counts, including first-degree kidnapping and sexual assault with a minor under 14. At issue in Miller's trial wasn't the legality of payments but testimony from the DA's Office that it had destroyed handwritten receipts for the vouchers. Clark County District Judge Elissa Cadish instructed jurors they could view witnesses as less credible because of the destroyed evidence. The payments — and lack of receipts to document them — don't appear to have been a deciding factor in the jury's verdict. After the trial, Wolfson said he stood by the practice. But he recently told KLAS-TV he would be halting the controversial pretrial payments, saying they were "probably inappropriate." "The payment of a witness fee for preparatory interviews is not going to take place in the DA's Office anymore," Wolfson told KLAS. Alan Lefebvre, president of the State Bar of Nevada, questioned why such pretrial payments ever were made. He said while Nevada law allows witnesses to be paid $25 for appearing in court, it doesn't extend to meetings with prosecutors. "Our prosecutors are professionals and know how to access ethical opinions from the bar's standing committee on ethics; the criminal defense bar has the same access," Lefebvre wrote in an email. "The bar maintains an ethical hotline just for this purpose." Wolfson's shift comes after inquiries showed the $1.2 million budgeted to the DA's Office every year for witness fees lacks oversight. Wolfson has asked that the audit answer three questions: n What records does Clark County possess on the district attorney's expenses for payments given to witnesses from 2009 to 2013? n Is there any independent audit looking into these expenses? n Officers of the district attorney's testified that records before 2010 pertaining to witness payments weren't available. Is this true and is the district attorney considered the custodian of these records? John Wesley Hall, a former president of the National Association of Criminal Defense Lawyers, practices in Little Rock, Ark., and is licensed in Nevada. Hall said he's only heard of the practice taking place in Clark County. As for Clark County, witness-payment records could come up in any pending case that started before Wolfson stopped the practice. In theory, if the prosecutors can't come up with the records, defense lawyers could snag a jury instruction like the one in Miller's case: It is OK to view paid witnesses as less credible because of the destroyed evidence. "Every defense lawyer now should be asking for that jury instruction," Hall said. 13 12/11/13 5:50:07 PM

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