Det. Sgt. Ed Howard testified that he came upon Rich Tabish and two associates digging up Ted Binion's silver in the dead of night. (Court TV)

By Laura Barandes
Court TV

The arrest of Rick Tabish and his associates at the site of Ted Binion's buried silver was the result of small town politics, the defense argued Monday. However, prosecutors made it difficult to shake the image of Tabish digging up Binion's treasure in the dead of night.

Read the interview with Rick Tabish that the judge would not admit into evidence

Former sheriff's deputies Ed Howard, Dean Pennock and Steve Huggins testified that it was their decision to arrest Tabish and his associates Mike Milot and Dave Mattsen in the early hours of Sept. 19, 1998, less than 36 hours after Binion's death, in Pahrump. The men were digging up the nearly 46,000 pounds of silver that the millionaire had buried on the desert property.

Tabish and his lover, Binion's live-in girlfriend Sandy Murphy, are charged with killing the casino mogul to steal his money and free Murphy from an allegedly abusive relationship with him.

Though Nye County Sheriff Wade Lieseke was present at the scene that night, prosecutors decided not to call him to the stand. According to Howard and Pennock, Tabish "continuously" asked them to phone Lieseke that night to vouch for him.

The defense elicited from a smiling Howard, Pennock and Huggins that they were vigorously supporting Lieseke's opponent in the upcoming sheriff's election. When asked if their position on arresting the three suspects differed from that of Lieseke, Howard answered, "it appeared that way."

Huggins testified that he believed Tabish and Lieseke had some arrangement, but, still suspicious, he and the other deputies decided to arrest Tabish, Milot and Mattsen regardless.

The defense maintains that Binion told Tabish that in the event of his death, Tabish should unearth the silver immediately, liquidate it and put it in a trust for Binion's daughter, Bonnie. The Pahrump property where Binion buried the silver was allegedly a point of contention between the millionaire and his ex-wife, so he wanted to make sure the silver did not revert to her if he died.

Howard said that he drove over to the site of the vault at 2:10 a.m. when he heard machinery noise and saw activity in that area. Mattsen was the first to approach him, said Howard, and told him "they'd be out of there in a few minutes" and asked "where's Wade [Lieseke]?"

Tabish defense attorney Louis Palazzo claims that the removal of Binion's silver was no secret. (Court TV)

According to the defense, the sheriff knew all about Binion's alleged plan to remove the silver and Tabish called him several times when he was on his way to Pahrump that night. Howard testified that Tabish said he had called the sheriff three times that evening.

In fact, Howard testified that the first thing Tabish asked him when he arrived on the scene was whether there had been a noise complaint. The defense claims Tabish's activities were no secret — how could he expect to hide all of the heavy and loud machinery, all of the tons of silver when the location was right off the main road in Pahrump?

The defense also highlighted testimony from Howard and Pennock that Milot asked if he could take a nap in the back of a truck, to show that the men were not nervous of being "caught" doing anything wrong.

The prosecution, however, drew attention to Tabish's alleged evasiveness with the officers that night. Howard said that Tabish at first denied that there was anything loaded in the belly dump of his equipment. When Howard had another deputy, Dean Pennock, climb up to look inside, "he said 'there's a s***load of silver in there.'"

"Okay," Howard quoted Tabish, "I lied."

Howard also testified that Tabish told him that "Ted said he was going to take a whole bottle of Xanax, lay down and go to sleep, and when he woke up his body would be cleansed of the drug." Tabish also said he was at Binion's house the day he died, Howard testified. The defense denies both of those statements.

Defense attorney Louis Palazzo also focused on the fact that none of the officers took field notes that night. They both testified that they wrote their reports from memory at least 24 hours after the event, and Howard even admitted to speaking with Binion attorneys before writing his official account.

Also Monday, bondsman Dario Constantino, a witness the defense tried to exclude, testified that Murphy came to him with her attorney to bail Tabish and Milot out of jail. Prosecutors tried to show conspiracy by this arrangement, but the defense attempted to diffuse the claim by pointing out that Murphy's lawyer signed on as the primary bail guarantor. Constantino also said that Murphy "was very upset" and expressed her pain at the loss of Binion to him.

A former coin dealer also testified that Binion had him appraise his silver fortune and was considering selling it at auction in California. Prosecutors claim that Murphy and Tabish were pressuring Binion to liquidate the silver, but Mark Goldberg testimony suggested that Binion remained in charge. Testimony continues Tuesday.