Big Cut Mine case: DA, defense at loggerheads over discovery

By From page A1 | October 31, 2012

Attorneys William Brewer and Glenn Peterson appeared in place of their clients, Joseph Hardesty and Richard Churches, respectively, in a lengthy hearing last Wednesday morning regarding issues of withdrawing the not guilty plea of both men and discovery from the District Attorney’s Office.

The hearing, presided over by visiting Judge Carl F. Bryan II, began with Bryan noting that he had received both sides’ arguments regarding the issues, as well as the reply to the prosecution’s argument.

Brewer declared he had made a motion to withdraw Hardesty’s plea. He said that, after a refiling of the complaint and a second amended complaint, the DA’s Office had not returned discovery and he and Peterson were at a loss for what the actual charges against their clients are. They had sent inquiries to official agencies, who refused to give documents, citing they were on the prosecution’s team. Hardesty had been promised warrants, discovery and more following his arrest, as well as being released on his own recognizance, but none of that had happened and he had to pay bail, Brewer said.

“Our only choice is to withdraw and demur,” Brewer said, meaning he would delay proceedings and object until he received what was needed. He said that the defense had to demur in order to understand the charges. “We can’t prepare a defense unless we know what he is charged with,” Brewer said on Hardesty.

Peterson then asked the judge for additional time before a plea was made. “We assumed the pleading would be clarified in the discovery,” he said. He explained that the charges do not define what hazardous waste or hazardous materials had been found and that the discovery “has not helped us one iota.”

Prosecutor Mike Pizzuti argued that the defense had time “at several stages” in the case prior to the upcoming preliminary to demur.

The judge agreed, and said he was “concerned” about the timeliness of the motions. “It seems late in the game to raise the demur,” Bryan said. He said he did, however, appreciate the counsel’s position.

All they had from the charges, Brewer again stressed, was that their clients had stored and disposed of hazardous waste, but that was as specific as they had. He said that to have the trial now would make it a “trial by ambush” and that it “shouldn’t be that big of a deal” for the prosecution to provide the proper discovery.

When asked for his view on the matter, Pizzuti said that the prosecution had a right to proceed to trial and that it was “quite disingenuous to call it a trial by ambush.” He said he motions were “just trying to draw out the case” and that they were “an attempt to further continue” the hearings.

Bryan noted the preliminary hearing was still set for Nov. 29 before calling for a recess to take other short cases and decide on a ruling.

After the recess, Bryan said he would allow Hardesty and Churches to withdraw their pleas. But, he overruled the demurer, the objection, saying that there was “sufficient information in pleading” for the attorneys to understand the charges.

Brewer said he as “in shock” when asked to respond, and the judge replied he was “sure at the preliminary there will be more information” and that it would all be addressed at the prelim. Brewer said he would withdraw the request to withdraw the pleas.

On the matter of compelling the DA’s Office to provide discovery, Brewer again requested the materials. He said that the defense “still did not have discovery we believe is relevant to the case,” nor a list of witnesses.

Pizzuti replied that what the two attorneys were asking for was outside the scope of what the prosecution could be compelled to give. He noted that he has worked informally with a member of Brewer’s firm in trying to deliver documents, but a “motion to compel is premature at this point” as he only has to provide material 30 days before trial. He said that the DA’s Office had already provided thousands of pages of material to the defense. Pizzuti reiterated that the breadth of the material asked for was not in the court’s power to compel.

The defense replied that they would file motions after the pre-trial hearings to compel the discovery be delivered before the 30 days. Brewer noted that it would be needed as one of the goals was to use the discovery to impeach one of the prosecution’s witnesses.

Bryan announced he would be going into recess again to decide on the matter. Upon returning, he announced that the prosecution’s “position is correct” and he would only issue an order requiring Pizzuti to provide a list of discovery and witnesses that would be used in the prelim and must be delivered to Brewer and Peterson by Nov. 5.

The hearing drew to a close with Brewer saying it was his intention to file a suppression motion and that he asked the court, in light of that, to reconsider its decision.

Bryan instead reaffirmed the prelim date of Nov. 29.

Cole Mayer

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