Judge takes motion to dump DA in Ogden case under advisement
Judge John Neiley will take the next few days to decide on a defense motion to boot the Ninth Judicial District Attorney’s Office off Matthew Ogden’s first-degree murder case.
Ogden’s charges stem from the death of his month-old daughter, Sarah, in June 2015. Sarah’s mother told police she awoke one night to see Ogden holding their daughter by the waist and violently shaking her. She said Ogden then took her into the next room, where she heard continued yelling along with “horrific” pounding and thumping noises.
When he came back into the bedroom, Sarah wasn’t crying anymore, and her mother rolled over and went back to sleep, according to an arrest affidavit.
The cause of death was later deemed a fractured skull, hemorrhaging to her brain and a lacerated liver.
The defense filed a motion for a special prosecutor under seal, and attorneys called witnesses and gave arguments on the motion Friday. The motion stems from the Ninth Judicial District Attorney’s Office’s most recent hire: Anthony Hershey.
Before being rehired at the district attorney’s office, Hershey represented Ogden in a dependency and neglect case that’s closely tied to his murder case. Thus, the defense has argued the entire district attorney’s office has a conflict of interest, and Ogden’s right to a fair trial is threatened by Hershey’s knowledge of the dependency and neglect case.
The prosecution, the defense and the judge all agreed that Ogden and Hershey had developed a client-attorney relationship while Hershey represented him in the previous case.
The question for this hearing, said Judge Neiley, was whether the entire district attorney’s office could be excluded from the case because of Hershey’s employment there. He added that there is substantial overlap between the two cases.
The court heard testimony from Hershey, Ninth Judicial District Attorney Sherry Caloia and the district attorney’s office’s IT director on their procedure for “walling off” Hershey from the ongoing case.
Hershey said he has never discussed Ogden’s dependency and neglect case with anyone in the district attorney’s office, nor anyone else – which is standard with confidential, attorney-client information.
Along with multiple interoffice memos to the district attorney’s lawyers, investigators and administrative staff about not talking with Hershey about the Ogden case, Caloia’s office programed measures into their electronic filing system that would prevent Hershey from accessing the criminal case – or even seeing that it exists.
For other attorneys and staff accessing those files, a text reminder pops up saying that they’re opening a conflict case and not to discuss it with Hershey.
Those measures are not uncommon said Charles Zelenka, the district attorney’s IT director. In the last three years he’s programed the same restrictions for conflict cases about 20 to 30 times, he testified.
Keil questioned Hershey about his behavior with case documents and correspondence, his habits keeping his computer, phone, email and physical files secured and where his individual office was positioned in the district attorney’s office.
Barrett said the prosecution could face severe penalties, even have their licenses to practice law revoked, if they obtained this kind of confidential information and didn’t disclose it.
Despite the district attorney’s office’s efforts to restrict Hershey from Ogden’s criminal files, there is nothing to stop someone from downloading those files and sharing them with Hershey, said Keil.
She cited case law stating that she was not required to present evidence of actual sharing of confidential information in the district attorney’s office – that kind of evidence being too difficult to obtain.
The precedent for this motion, she said, only requires that she show evidence that such confidential information sharing is possible.
Judge Neiley said he’ll have a decision by March 2. And in the meantime he issued a protection order with stipulation including barring Hershey from any involvement in Ogden’s or his wife’s criminal cases, or talking with anyone at the district attorney’s office about them.
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