LAS VEGAS — War Machine’s attorney is seeking a retrial for the former mixed-martial arts fighter who was convicted of 29 felonies in March stemming from an attack on former porn star and ex-girlfriend Christy Mack at her home, XBIZ has learned.
War Machine on Monday faces a sentencing hearing in front of Clark County District Judge Elissa Cadish, who could punish him on the convictions or grant a retrial.
Attorney Jay Leiderman, who represents War Machine, said that he’s hoping that Cadish will buy into the argument that the jury in the case was not allowed to weigh whether War Machine awareness of his actions were grossly impaired.
“We only get to sentencing if we lose our new trial motion,” Leiderman told XBIZ. “So, we're hoping that there isn't a sentencing.”
Leiderman said that during the course of the trial he was relying on testimony from defense witness Dr. Steven Holper, an expert on pain management, to argue that War Machine was “acting unconsciously” at the time he attacked Mack and friend Corey Thomas.
Leiderman, however, said he had to concede numerous counts against War Machine, who could face a life sentence, because the jury was told to disregard a defense of “acting unconsciously” during the beatings.
“The judge refused to instruct the jury on 'unconsciousness,'” Leiderman said. “I was prohibited from arguing the defense.”
Leiderman emphasized in a brief to Cadish last week that Holper indicated that War Machine lacked the free will to control his actions.
In a motion to arrest judgment on all counts, Leiderman cited War Machine’s past traumatic brain injury, coupled with his anxiety, depression, steroid and adderall use, as creating a scenario where his actions were “less than fully volitional.”
“The judge denied my defense based upon the lack of a single published Nevada case. Not one. In history,” he said. “However, after much effort, I discovered a statute that authorizes the defense — NRS 194.010(6). For all I know I [am] the first one to ever use the defense in Nevada.
“I think we're going to have to do the whole thing again. And if not, we'll proceed to sentencing and take the issue up on appeal.”
In March, after a three-week trial, War Machine was found guilty of 29 felonies -- six of them Class A felonies. The penalty for the most serious Class A charge, kidnapping with a deadly weapon resulting in substantial bodily harm, could range from a maximum of life without parole to a minimum of a 40-year sentence with a 15-year possibility for parole.
He also could get up to 20 additional years because of the use of a deadly weapon, such as the kitchen knives he used in the August 2014 attack at Mack’s Las Vegas home.
Industry attorney Karen Tynan, who isn’t a party to the case, told XBIZ that Leiderman’s motion for a new trial is “typical, expected and somewhat formulaic.”
“War Machine’s counsel picks out a few straws to grasp at,” Tynan said. “’I was unconscious’ straw appears to be outlandish, bizarre and, frankly, without probability of being an effective argument for a new trial.
“War Machine’s sentencing brief is typical in the ‘maneuvering to blame others’ tactic. Considering the heinous nature of his crimes, I don’t see the claims childhood trauma as making any huge difference in his sentencing.”
Industry attorney Marc Randazza, also not a party to the case, pointed out that the Las Vegas jurist who has presided over the case from the beginning is no-nonsense.
“Judge Cadish is as good a judge as they come,” Randazza told XBIZ. “She is not likely to tolerate bullshit. At the same time, any defendant in her courtroom is going to have as clean and thorough due process as the constitutions of Nevada and the U.S. provide.
“Indeed, if War Machine was unconscious at the time, he might be entitled to additional due process,” Randazza said. “However, I’m having a hard time buying it.
“There’s a joke we tell in Sicily when we are asked an uncomfortable question: ‘I didn’t see nothing, I didn’t hear nothing, I wasn’t even there, and if I was there, I was asleep.’ This is not Sicily, War Machine is not Sicilian, and Judge Cadish isn’t either.”
Monday’s sentencing hearing begins at 10 a.m. in Cadish’s courtroom.