LIHU‘E — State Attorney General Mark Bennett was three for four in state court Wednesday, prevailing on all but one defense pre-trial motion in the James Pflueger manslaughter case. Pflueger’s jury trial is scheduled for mid-April before 5th Circuit Judge
LIHU‘E — State Attorney General Mark Bennett was three for four in state court Wednesday, prevailing on all but one defense pre-trial motion in the James Pflueger manslaughter case.
Pflueger’s jury trial is scheduled for mid-April before 5th Circuit Judge Randal Valenciano, but an expected appeal on one of his rulings may delay the start of the trial, said attorney David Minkin, representing Pflueger.
Valenciano denied defense motions requesting: change of venue, dismissal of charges due to double jeopardy, and dismissal of charges due to insufficiency of evidence or vagueness.
The judge granted Minkin’s motion to drop the first-degree reckless endangering charge against Pflueger, but the seven manslaughter charges remain.
The charges stem from the failure of Ka Loko Reservoir on March 14, 2006, which resulted in an estimated 370 million gallons of water quickly overflowing Wailapa Stream and sweeping several homes and seven people downstream toward the ocean to Kilauea Bay.
Seven people died, but not all of the bodies were found.
A wall of water estimated to be 15 feet high when it crossed Kuhio Highway, and higher at times, rumbled mauka to makai and swept away people sleeping in their homes, Bennett said.
“We’re very pleased with the court’s ruling that seven manslaughter cases are going to trial,” and Kauaians will decide Pflueger’s guilt or innocence, Bennett said after the two-hour proceeding.
Criminal trials should take place in the jurisdiction where the alleged crimes took place, Bennett said, adding that Valenciano made the right calls on the motions.
Both Minkin and Bennett predicted that an appeal of the double-jeopardy ruling will likely delay the scheduled mid-April start date for the case.
In his double-jeopardy argument, Minkin said Pflueger can’t be tried again for un-permitted alterations to Ka Loko because Pflueger pleaded no contest and was found guilty of grading violations there in 2003, based on allegations of illegal earth-moving in 1997 and 1998.
Bennett countered that the county grading violations were for work on the south end of the reservoir, and the spillway is at the north end of the reservoir.
Filling of the spillway, an overflow-prevention safety feature, allegedly by Pflueger or his agents, is believed to have been a contributing factor to the reservoir’s fatal failure, Bennett said.
“The dam failed because of that (filling in of the spillway),” and because Pflueger knew about the danger of the filled spillway and refused to do anything about it, Bennett said.
Pflueger, 83, was in court wearing blue jeans and a blue long-sleeve dress shirt, but did not speak to the media.
Brian Sun argued the defense motion for dismissal of charges for insufficiency of evidence or vagueness, saying there was “absence of evidence of certain elements” necessary for a finding of probable cause in manslaughter cases.
He also said the state showed no evidence that Pflueger’s filling of the spillway in 1997 or 1998 created a danger, or that Pflueger was conscious of the risk of a fatal breach and whether he ignored that risk.
Valenciano agreed with Bennett that there was sufficient evidence to indict him. Bennett said prosecutors did not have to show any recklessness, but did, quoting Tom Hitch telling Pflueger he can’t fill in the spillway due to safety concerns.
There was probable cause, said Valenciano, adding that he is reluctant to interfere with grand jury proceedings or a grand juror’s view in findings of probable cause.
Minkin argued on the change-of-venue motion that large amounts of media reports on the Pflueger cases from “official” and “unofficial” sources ensured Pflueger could not get a fair trial on Kaua‘i.
Valenciano found there was no such “barrage” or “influx” of publicity, or huge wave of public passion against Pflueger, noting the presence of just two reporters in his courtroom during Wednesday’s proceedings.
Bennett said before the grand jury proceedings were even completed Pflueger’s legal team held a press conference, and others in the Pflueger camp were telling reporters about Pflueger’s positive features and community contributions.
Bennett is to prepare three orders on the motions where the state prevailed, with findings of fact and conclusions of law included, by Wednesday for distribution to Minkin, and by Jan. 27 to the court, with Minkin to prepare the order on the dismissal of the reckless-endangering charge with the same deadlines.
