LAS VEGAS -- An I-Team investigation has uncovered how missing evidence at the Clark County District Attorney's office impacted a major rape trial. A jury found a local man not guilty after a judge told them they could consider how the DA's office destroyed evidence regarding payments to witnesses.
A Las Vegas man, Gary Miller, faced 25 felony charges including sexual assault and incest. He was accused of raping a relative and two other juveniles. A jury found him not guilty, but that verdict came after employees in the district attorney's office testified they had destroyed evidence in that case and many others.
Based on the charges, Miller effectively faced a life sentence. When defense attorneys Dayvid Figler and Dan Bunin began to look into how much the DA's office paid witnesses to come to the courthouse for trial preparation, they hit a snag.
"This is an email from one unit of the district attorney's office to the prosecutor saying, 'I do not have any voucher records dating back to 2009, 2010. All have been destroyed,' then there's a bit of a frowny face," Figler, Miller's attorney said. "Every three years from the creation of the documents that would indicate how much was paid to bring each witness in, they literally destroy them by burning them."
Figler said witnesses gave conflicting numbers about how much they were paid by the DA's office, in addition to their travel and hotel expenses. When the DA's employees were called to testify, one admitted there may have been overpayments.
"She may have been overpaid," said Felizia Hernandez with the DA's office during her testimony Oct. 3, 2013.
Judge Elissa Cadish gave jurors an unusual instruction. They could consider testimony they heard of the DA's office destroying witness payment evidence in their verdict. Prosecutors were not allowed to bring up Miller's 1993 conviction in Los Angeles for sexually molesting a 3-year-old.
The jury found Miller not guilty of the Las Vegas rape charges. Figler says this isn't the first time he's caught unusual payments coming from the DA's office. He won another not guilty verdict in 2009 after one witness claimed prosecutors gave her $65 for a pre-trial appearance.
"She indicated that the prosecution had done that," Figler said. "She told us that when she did get that $65, she went out the next hour and bought crack cocaine."
Newly-appointed District Attorney Steve Wolfson promises to change the way his office handles witness payment evidence.
"I don't want this situation to happen again. That's why I asked for an audit to be conducted so we can learn what our current processes are so we can improve on them, because there was a failure," he said.
Wolfson explains that though the evidence in the Miller rape case could not be found in time for the trial, backup copies, showing who got paid and for what amount, are kept by Clark County. The problem is with cases taking years longer to get to trial, it's become increasingly difficult for the DA's office to keep track of payment records.
"The inability to produce those records, that's the problem and that's why I'm hopeful this audit will show the failures of the current system and make recommendations for improvement," Wolfson said.
Witnesses are entitled by state law to $25 for courthouse appearances. District Attorney Wolfson said any additional payments have come to an end.
"I will tell you that is a practice that is probably inappropriate," he said. "The payment of a witness fee for a preparatory interview is not going to take place in the DA's office anymore."
The I-Team was able to reach a juror in the Gary Miller rape trial. She said there were just too many problems jurors had believing the prosecution's witnesses. She added, that while the judge's instructions to consider evidence destruction were not the deciding factor in their not guilty verdict, it certainly didn't help.
The district attorney adds that a new case management computer system rolling out in a year or two and should help prosecutors find and present evidence in trial.
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