LIHU‘E — James Pflueger made his first physical appearance in a Kaua‘i courtroom Tuesday, sitting in the gallery alongside family and friends as a handful of his attorneys argued a pair of motions in the manslaughter case stemming from the
LIHU‘E — James Pflueger made his first physical appearance in a Kaua‘i courtroom Tuesday, sitting in the gallery alongside family and friends as a handful of his attorneys argued a pair of motions in the manslaughter case stemming from the Ka Loko Reservoir Dam breach three years ago.
Pflueger, 82, appeared to be in good spirits and health throughout the hearing, having seemingly no trouble moving around before, during and after the hearing. In January, Pflueger’s medical problems kept him on O‘ahu and he appeared via videoconference as lawyers entered pleas of not guilty to the seven counts of manslaughter in the criminal indictment, one for each of the seven lives lost when a torrent of water was released from the reservoir.
A decision on the more critical of the two Tuesday motions — the defense’s attempt to disqualify Attorney General Mark Bennett and his staff from prosecuting the case on the grounds that the department is also representing the state in the ongoing civil litigation — was continued until May 12.
The other motion, made by the state to quash subpoenas that would have required Bennett and two of his deputies to testify, was granted by 5th Circuit Chief Judge Randal Valenciano.
That decision, however, came with the caveat that written declarations from those who are being protected from testifying will be also be disallowed unless the attorneys in question make themselves available to cross examination by lead Pflueger attorney Bill McCorriston, a give-and-take that Valenciano said would be most fair to both sides.
The delay in Valenciano’s decision on the motion to disqualify the Department of the Attorney General will allow Bennett to decide if he or any of his deputies will testify despite the successful request to throw out subpoenas requiring them to do so. If Bennett decides to go that route, McCorriston will be allowed to call rebuttal witnesses.
Two witnesses called by McCorriston before the continuation were both attorneys who have worked for Pflueger on other related matters.
Wesley Ching testified that his representation of Pflueger in the civil cases — which feature claims against Pflueger and other entities seeking damages for property damage and wrongful death — has been hampered by the state’s failure to disclose that documents were being passed over the “wall” or through the “screen” that had been built between the civil and criminal “teams” within the office.
Noel Wise testified that she had helped negotiate — with the state, among other entities — a consent decree resolving grading and other violations at both Ka Loko and nearby Pila‘a just days before the dam breach in March 2006.
Their testimonies were likely intended to highlight what Pflueger attorneys contend is a broad conflict of interest in the case.
Asked after the hearing how he thought it had gone, McCorriston said, “So far, so good.”
Bennett disagreed, saying, “We continue to believe, as we’ve said in our pleadings, that the motions are without merit.”
If the motion were to be granted, Pflueger’s attorneys would likely ask that the court appoint a special prosecutor to handle the case.
Another two motions are scheduled to be heard today. Both motions, according to court records, are seeking a dismissal of the charges on the grounds of prosecutorial misconduct, with one motion specifying that the Attorney General failed to disclose exculpatory evidence — in other words, evidence that could have undermined the state’s case and supported Pflueger’s counterargument — to the Grand Jury before it issued the indictment in November 2008.
For full coverage of the two motions to be heard today, see Thursday’s edition of The Garden Island.
• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.com
