Monday, July 28, 2014
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Big Cut Mine hearing airs digital photo issues

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DEFENSE ATTORNEY William Brewer, standing, argues about missing information on digital photos while co-counsel Glenn Peterson reviews documents. At the prosecution table are Dale Gomes, left, prosecutor on this case, and deputy DA Michael Pizzuti who is waiting for another matter. Democrat photo by Shelly Thorene

By
From page A1 | March 26, 2014 |

A Friday hearing regarding the possible dismissal of charges against two miners turned into an argument about evidence.

Prosecutor Dale Gomes told Judge Daniel B. Proud that he had not received or heard anything regarding a 995 motion to dismiss charges. Defense attorney William Brewer, representing Joseph Hardesty, said he had e-mailed Gomes regarding discovery, but Gomes had gone to the Super Bowl and not responded. When he asked Gomes if the defense team could have a two-week extension to get the discovery, Gomes said no. Thus, the motion was not filed.

Proud had received and read a 995 motion from Glenn Peterson, representing Richard Churches, in September of 2013 with Gomes’ reply in December. The motion had to do with misdemeanor counts; Proud denied the motion. Other issues the defense team had, he said, were for trial, not pre-trial hearings.

The hearing then focused back on discovery. Gomes said he sent everything he had after the last hearing. He called it a “disorganized mess” but he sent it over. There was an issue in that a Dropbox account was used to transfer the files, and the Dropbox was filled to capacity. He could only put more discovery into the digital account after the defense team took the files.

Peterson then told the court that photos produced by Gomes contained no metadata — information contained within the photograph such as time and date it was taken, aperture information and, if a GPS is installed in the camera, the longitude and latitude where the photo was taken. Peterson said photos taken before 2011 had such metadata, but not photos taken after.

“We have reason to believe,” Peterson said, “a good portion are in violation of the 4th Amendment,” that they were taken without a warrant on land owned by Churches and Hardesty. He said the only explanation was that the metadata was wiped to hide this and that if the photos were reproduced “organically,” the metadata would be preserved.

Although he looked it up online, Gomes said he had no idea what metadata was. He gave the defense team what he had. He said if their team believes there is a conspiracy to keep the metadata from them, they could file a motion to suppress. “Suppress 1,800 of 1,900 photos, I don’t care.”

Peterson fired back saying the metadata was important — the motion to suppress will be larger than just the photos, including investigative reports and witness statements.

Reiterating his point, Gomes said he turned over what he had and the District Attorney’s Office did not manipulate any photos. Instead, they were a dumping ground for other agencies’ photos and he passed them along.

After noting he had already ordered all discovery to be shared, Proud told Peterson, “Do what you feel you need to do” regarding filing motions.

Brewer then pointed out that files in the Dropbox account were corrupted, though he believed it was Gomes forgetting to change file formats rather than anything nefarious. He then said, back on the topic of the photos, that on Oct. 18, 2013, Gomes had been ordered to provide the identity of who took which photos and the dates the photos were taken. He said the information hadn’t been provided, which they needed to investigate and see the original copies of the photos. He said the defense team has reason to believe the information would lead to exculpatory evidence.

“I would be absolutely amazed if the people had the information and were part of a conspiracy to provide corrupt files” and not provide information, Proud said. Brewer replied he did not think there was a conspiracy and the corrupted files had been resolved.

Gomes said he did not know which agency took which photo when; the photos were simply dumped on the DA’s Office from multiple outside agencies. “Some things I can do, some things I can’t do,” he said. Many of the photos were very similar to each other. “Oh, there’s a tractor. There’s a tractor from the side. There’s a tractor from the front.” If the defense wanted to exclude the photos, he’d get a new warrant and get new photos. He also noted the photos were digital — there is no original copy. The defense would do him a favor if they, for example, suppressed all but 100 photos.

Brewer moved on to telling the court that they needed to know who is on the prosecution’s team before going to trial. Gomes said there is no team and he had no investigative agency. Brewer and Peterson had legal ways to find this out and could subpoena agencies for information. Gomes, Proud said, had asked for information from 10 agencies and the defense team already knew which ones.

“Mr. Gomes is unlikely to misrepresent in court; I’m sure he cherishes his job,” Proud said.

Eventually a nine-day trial was confirmed to start on July 9.

Outside of the hearing, Churches said part of the defense’s argument is that Churches and Hardesty hold a patent for the land, which should allow them to mine regardless of whether a year had gone by without them doing any mining. Their patent was transferred to them by the previous owner of the land. Similar patents for other mines had been recognized as such, Churches said, in other cases.

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