Witness payments key in after-school shooting hearing
A Clark County judge will hear arguments Tuesday that a teen was railroaded because prosecutors failed to disclose they had paid to move the only person who could identify him as a shooter in a 2008 ambush at a school bus stop.
Prosecutors, who have been taking heat from the defense bar in light of a Review-Journal investigation of payments for witnesses’ rent and other expenses from an off-budget account for more than a decade, call the allegation a flat-out lie.
In court filings, Clark County Chief Deputy District Attorney Marc DiGiacomo argues the DA’s office did let the defense know about the $500 rent check in the bus stop shooting.
Prosecutors said in a court document they would turn over all evidence in that case, making a special point to note that “in an abundance of caution” they want the court and defense to know that, due to threats, the DA’s office paid to move a teen who witnessed the crime and her mother.
That doesn’t cut it as disclosure, said defense attorney Betsy Allen, who represents Franklin Jackson. Jackson was convicted of one count of conspiracy to commit murder and seven counts of attempted murder with a deadly weapon for the after-school shooting. He was 17 at the time of the crime but was tried as an adult.
Prosecutors argued Jackson was part of a plot to attack another teen after he got off a school bus from Mojave High School in North Las Vegas. The shooting — which left six wounded — was punishment for an earlier altercation, prosecutors argued.
Mojave student David Macias had bumped into Nicco Tatum the day before the shooting, prosecutors said. An apology wasn’t enough for Tatum, who enlisted Jackson and other friends to exact revenge, prosecutors argued.
Tatum pleaded guilty to attempted murder with a deadly weapon.
Allen says in court filings she never saw the actual paperwork or any concrete details about what helping with moving expenses meant until she was asked to review records obtained by the Review-Journal.
The defense lawyer also said she takes offense with the tone of the DA’s office motion, which argues she should be punished for bringing the case back to court over the payments. DiGiacomo’s position: The money was no secret.
Allen calls the motion snarky and accusatory — it suggests she’s media-hungry — while dodging what her client wants to know: Why wasn’t the payment detailed to the defense?
The Nevada Supreme Court overturned a conviction after finding prosecutors didn’t provide the defense “full disclosure” because they only spoke to defense attorneys about evidence and did not share actual documents.
In August, Chief Deputy District Attorney Thomas Carroll said that while some lawyers might not have known about it, the defense community must acknowledge that payments were sometimes disclosed.
Financial help for witnesses typically comes in the form of a one-time check to a landlord.
Carroll said in August he was reviewing another case and noticed a trial transcript that showed the defense did know about housing assistance to witnesses because the defense questioned the witnesses about the payments.
Ozzie Fumo, the defense attorney in that case, said he reviewed every document in his case file and couldn’t find pre-trial references to payments.
Transcripts show prosecutors during trial made a point of bringing up their help with moving expenses.
After the comprehensive review, Fumo said he can say with 90 to 95 percent certainty that he did not learn about the rental help from the DA’s office before trial.
“There was no ‘Aha!’ moment where I have a note or anything,” Fumo said. “That would have been something to really dig into.”
The Review-Journal has found one other example in which a payment was disclosed — after the prosecutor brought up the subject at trial.
In another case, there is no question that prosecutors kept the information from the defense.
Chief Deputy District Attorney David Stanton admits he didn’t disclose payments to lawyers for a man facing the death penalty in the machete murder of a woman, arguing he didn’t have to because knowing about the $500 rent payment wouldn’t have helped the man’s case.
Judge David Barker will hear that case Nov. 14. Barker has said he plans to issue a written order, an indication the judge is giving it extra attention.
District Attorney Steve Wolfson announced in August that he is reviewing his office’s witness payment practices.
Public records show the DA’s office had made more than 50 payments — sometimes for more than $1,000 — since 2004. It’s unclear how many cases are involved because some case information was redacted when provided to the Review-Journal.
Wolfson, who was appointed in 2012, has stressed that the practice is rare.
Revelations about the practice, as well as the number of payments, stunned several private defense attorneys and the public defender’s office, which handles about 40 percent of Clark County’s criminal cases.
Wolfson also has pointed to a law that allows district attorney’s offices to operate funds for victims of crimes, but the DA’s office has assisted people who aren’t named victims.
In fact, records show the DA’s office paid for a week’s worth of housing — $163 — for a woman who ended up being charged with murder. Police found the body of Carl Pane Simon, 50, in a dumpster Aug. 12, 2013. On Aug. 22, the DA paid rent for Theresa Allen, then 46, and another woman for a week. Allen was arrested Sept. 13, 2013.
Authorities say Allen, along with two others, tortured Simon, a homeless man, eventually stuffing him in his suitcase and drowning him in a bathtub.
Contact Bethany Barnes at bbarnes@reviewjournal.com or 702-477-3861. Follow @betsbarnes on Twitter.
