Four years ago, a Las Vegas defense attorney was shocked to find that the Clark County District Attorney was paying witnesses. It wasn’t a lot of money - $25 for showing up to trial and pre-trial discussions, plus mileage – but few defense attorneys at that point were aware that it was a regular practice.
And the payments may have been small, but as described in 2009 in the Review-Journal by reporter Carri Geer Thevenot, it was apparently enough for a crack-smoking witness to perjure herself for $50.
One of the attorneys in that case was Dayvid Jann Figler, a well-known attorney and former Las Vegas Municipal Court judge and judge-alternate. He has engaged in a crusade of sorts against the practice and aspects of the payments that he feels are particularly problematic - specifically, the lack of records on who got paid, and how much.
Figler’s efforts this month were rewarded with a significant concession from District Attorney Steve Wolfson: He said his office would end the practice of paying witnesses for pre-trial conferences. Paying witnesses for appearing at trial, though, will continue because it is required by statute.
Figler compliments the Wolfson for that change in policy but says there are still big problems with the payments, among them, the destruction of records.
“Steve Wolfson’s reform is an extremely positive step,” Figler says. “It’s not a victory for me. It’s a victory for the system.”
But, “I don’t know when this practice began, and I don’t know when the decision to destroy the records was imposed.”
There remain two issues, he says. He wants the court to control payments to witnesses, rather than the DA’s office. “Issue No. 2 is, were there any cases in the system where someone was convicted on the testimony from a witness who was compensated?”
Figler says it’s not clear how big the issue is, but it could affect decades of criminal trials in which the government won convictions based on the testimony of a single witness. However, identifying those cases is easier said than done, in large part because records have for years or decades been destroyed after one year. The county’s Comptroller’s Office knows how much money has gone into the system, but it doesn’t identify who benefited.
“We’ve found records that hundreds if not thousands of dollars were being given in the form of cash vouchers directly from the DA to some witnesses, and then the records were destroyed (by) the DA,” Figler says. “This is taxpayer money and there has to date been no revelation that there has been any reconciliation of payments with authorized expenditures. It’s accurate that the Comptroller has records of the payments, but they are unsearchable by name of witness, so basically useless unless the DA produces the vouchers numbers, which they apparently destroy after one year.”
County officials, including Wolfson, downplay the impact of paying witnesses on old convictions.
Wolfson said hotels and airlines are paid directly by the county, so there’s no opportunity for witnesses to pad the expense accounts for extra money.
A witness typically gives up three or four hours, and can surrender a full day of time and income, to testify, Wolfson says, so “$25 is a very small remuneration.”
“It’s stretching it to suggest witnesses would alter their testimony based on these kinds of payments,” he says.
However, Wolfson also has asked the county to do a “performance audit” of the entire process of witness payments to identify any weak points in the program and ways to improve it. That process should be complete early next year.
So the story, which Wolfson clearly would love to put to bed, will continue with the audit. Figler, too, says he may well take a look at cases in which the DA won convictions based on uncorroborated testimony.
“We’re taking a hard look at all of our cases for all of our clients,” he says. “If someone were to come into our office and ask us to take a look based on this issue, we definitely would take a look at those cases.” CL