Court motion says cop may have planted child porn

A former Nye County public defender filed a scathing motion in District Court Friday, accusing a controversial detective of possibly planting evidence in a pending child pornography case.

Attorney Tom Gibson filed the 27-page document on behalf of James Earl Marshall, brother of Nye County Assistant Sheriff Rick Marshall, a candidate to replace Sheriff Tony DeMeo in November.

James Marshall was arrested March 28, 2012 after sheriff’s Det. David Boruchowitz learned from the Internet Crimes Against Children Taskforce that child porn had allegedly been downloaded to an IP address subsequently linked to James Marshall’s Internet service account.

Boruchowitz has appeared as a central character in a number of high-profile news stories over the last few years, including being the target of a 2013 Nevada Department of Public Safety Investigation Division probe into allegations he coerced Antionette Bell, a client of Gibson’s, into filing a false complaint against Gibson’s wife, Louise, who is employed by the Nye County School District.

Gibson filed a complaint on behalf of Bell and his wife that led to the state investigation being opened.

A still-secret internal affairs report on the matter is among material Gibson says he believes will show Boruchowitz to be an untrustworthy witness for the state in the James Marshall case. In fact, confidential sources have told the Pahrump Valley Times that the coercion claims made against the detective were later proved unfounded, but that during the course of last year’s investigation it was discovered that the detective had allegedly mishandled evidence in a criminal case involving Bell, including sex tapes starring Bell and her mother.

Boruchowitz made headlines again in April when he reportedly orchestrated the arrests of Rick Marshall and Ben Gully, a longtime volunteer at the sheriff’s office. Both men were caught on video removing signs paid for by political action committee Citizens to Elect an Ethical Nye County Sheriff. The PAC organized a campaign to keep Rick Marshall from becoming sheriff, buying and placing signs throughout the county with the words “Anybody But Rick” prominently displayed on them.

Boruchowitz has made no secret of his participation in the PAC, even getting caught in May passing out “Anybody But Rick” campaign literature when he was supposed to be out on stress leave in the aftermath of Rick Marshall’s arrest.

Gibson posits in his motion that the detective, in an all-out campaign to destroy Rick Marshall’s ability to get elected, “manipulated or manufactured evidence” that found its way onto James Marshall’s home computer and then arrested him for it.

Gibson writes in his motion that he plans to introduce a defense arguing as much at trial next year.

In the meantime, the attorney is seeking to compel “disclosure and production of exculpatory evidence” against the detective. This is often termed a “Brady demand.”

Gibson’s motion asks for the secret internal affairs report — another detective, Harry Williams, was ensnared in the state’s investigation, was allegedly caught lying to investigators to protect Boruchowitz and was recently placed on paid administrative leave as a result, sources tell the PVT — the detective’s original job application, worker compensation records related to the detective’s “stress leave,” and other personnel records.

Gibson cites a few instances in which it is alleged the detective purposely lied or misconstrued facts while testifying in criminal cases. For example, the motion cites a 2012 case, State v. Thoene, in which the detective told jurors the defendant had made guilty admissions under questioning. When a tape of the detective’s interrogation was played to the jury, no admissions were evident. The defendant was acquitted of all charges.

Gibson also cited State v. Argabright, a case that ended in an acquittal for a defendant less than two weeks ago.

“Boruchowitz was true to form and testified that during telephonic interviews with the defendant ‘His (Argabright’s) demeanor was passive and non-responsive during interviews, never admitting nor denying guilt.’ The recorded interviews showed a different story. It showed that Argabright Jr. said ‘I did not do it’, on numerous occasions during the interview,” the motion states.

Argabright attempted suicide while the trial was ongoing. He was also acquitted on all charges. His attorney told the PVT the detective’s testimony probably harmed the prosecution’s case.

“The facts speak for themselves. Detective Boruchowitz is a man of deplorable ethics and character. He has shown himself to be a liar and has no issues with manipulating and mishandling evidence,” Gibson wrote in his motion.

He also wrote about approaching District Attorney Brian Kunzi in March seeking the same Brady material — this was when Gibson was still a public defender; he lost his county contract last month. Kunzi provided Gibson with the detective’s original job application but refused to divulge the internal affairs report.

“After a lengthy discussion Mr. Kunzi indicated Counsel would need to file a Motion to Compel Discovery and the District Court Judge would make the determination whether the IA report should be released to Defendant. The present Motion was filed as a result,” Gibson’s motion states.

The attorney noted that the material he sought was already provided to lawyers representing former District Attorney Bob Beckett, who had Boruchowitz arrested in 2010. The detective sued the county and the former DA in federal court for violating his civil rights. That case is pending.

Gibson noted that as the attorney for Bell, because Bell was deposed in the Beckett case in federal court, he was privy to the material he is now seeking. A protective order in that case, however, prevents him from disclosing what he learned.

Las Vegas attorney Warren Geller requested similar internal records about the detective on behalf of a client named Ronald Berglund earlier this year. Berglund was set to go to trial last month on sex-related offenses. Boruchowitz was the lead detective in that case as well. A prosecutor told the PVT that Berglund was offered an advantageous plea deal at the last minute and the case was settled before trial.

Kunzi said Monday that he is aware of Gibson’s motion and plans to file an opposition within the next 10 days. He confirmed that he reviewed the information Gibson is seeking and determined it was not “Brady” material. As noted by Gibson in his motion, however, “it is not up to the prosecutor, to make the determination if a matter should be disclosed.”

“We are responding. Ultimately the Court will decide if there is any information contained in Det. Boruchowitz’s personnel records that could be used to impeach him,” Kunzi wrote in an email response to questions. “I reviewed the records and determined there was no such evidence in the personnel records. Mr. Gibson is misinformed if he believes, as he asserts in his motion, that I had an obligation to submit the files to the Court for a review. I met with Mr. Gibson and informed him I did not believe there was any information that was required to be produced.”

Kunzi also said he informed Gibson that he was the wrong person to raise such issues since it was he who brought the complaint against the detective that led to the internal affairs investigation in the first place.

“I also informed him I had a problem with this issue in that Mr. Gibson is the wrong person to raise these issues. The report Mr. Gibson is trying to obtain concerns an investigation initiated by Mr. Gibson in which Mr. Gibson is a witness. Mr. Gibson cannot raise these issues without making himself a witness in the case. He cannot act as counsel and be a witness,” Kunzi said. “It appears Mr. Gibson has chosen to become a witness and will undoubtedly be stepping down as defense counsel since he has brought this action.”

Boruchowitz told the PVT Tuesday that he had seen the motion and was prepared to make a lengthy rebuttal. However, on the advice of his union attorney, he says he will withhold comment.

“I am aware of the filing. I have read it and a majority of it is baseless and bold-faced lies. On the advice of my counsel, I will allow this to play out in court and withhold further comment,” the detective said.

Gibson said he will let his motion speak for itself, declining further comment when reached Tuesday.