Special prosecutor hearing postponed until November
Post Independent Staff
A deputy district attorney said Wednesday he “relishes the opportunity” to cross-examine a former prosecutor regarding her allegations of unequal treatment of cases by the DA’s office.
However, that opportunity will wait a month after deputy district attorney Scott Turner won a judge’s approval for a delay in a hearing on a request for a special prosecutor.
Jeff Cheney, a former prosecutor in District Attorney Colleen Truden’s office, is seeking the special prosecutor in a case involving the shooting of a dog near New Castle. Now a defense attorney, he fears that his client, Ken Newton, 50, will receive unfair treatment by Truden’s office because Cheney has been involved in the campaign to recall Truden.
In his request for a special prosecutor, Cheney is calling as a witness Katherine Steers, who resigned as a prosecutor in August and accused Truden of abusing her power. Steers says Truden made prosecution decisions according to what defense attorneys have said publicly about the DA’s office, “instead of basing them on the case and doing what’s right for the defendant.”
Steers has filed an ethics complaint against Truden. Truden, who faces a recall election Dec. 13, denies Steers’ allegations.
Cheney had hoped to have District Court Judge Dan Petre consider his request at a hearing Wednesday. However, Petre delayed the hearing until Nov. 14, in part because only an hour had been scheduled for it. While Cheney thought that would be sufficient, Turner estimated the hearing would take two hours.
“I can’t imagine my cross-examination of Ms. Steers would take less than an hour,” Turner said.
He said he may also call rebuttal witnesses in the case.
Newton faces felony charges of tampering with physical evidence and criminal mischief, and a misdemeanor charge of animal cruelty, for allegedly shooting and burying his neighbor’s dog near New Castle and not telling her what he had done.
In his motion for a special prosecutor, Cheney cited Steers’ allegations that Truden and assistant DA Vince Felletter threatened defense attorneys with bad plea deals if they spoke out against the DA’s office.
Cheney wrote that “the allegations on their face reflect a possible compromise in the integrity of our judicial system.” He said a special prosecutor is warranted due to the “appearance of impropriety.”
In a counter motion, Turner responded, “That is comparable to stating that (a) defendant is guilty merely because he has been charged.”
Cheney also wrote in his motion, “If Mr. Newton is forced to elect what counsel he chooses based upon whether such counsel has criticized the sitting district attorney during the recall process, this would empower the prosecution in a decision-making process in which it should not be involved. It is tantamount to vesting the power of choosing defense counsel for a defendant in the prosecutors.”
Cheney maintains that his right to free speech also is at stake.
Turner counters in his motion that Cheney’s role in the recall campaign isn’t evidence that Newton is unlikely to receive a fair trial.
He adds that the DA office, by its very nature, is political.
“If the defendant’s benchmark of opposing the district attorney for political office as grounds for recusal is adopted and approved by this court, then potentially thousands of people could pursue a similar path,” he wrote.
Opposing candidates, supporters of the recall effort, signers of recall petitions, even people voting against Truden could make a similar claim, he contends.
“Such a precedent would cripple the ability of a district attorney to prosecute in every jurisdiction in the state,” he wrote.
“The mere fact that you make a derogatory remark about the district attorney is not enough to allow a ‘sane and reasonable mind’ to think that the attacked party is biased or prejudicial.”
Cheney argues that no precedent is being set regarding Truden because the recall effort is likely to be resolved by the end of the year.
Turner said in his motion that Cheney apparently is alleging only that Newton would be treated unfairly in plea bargaining, but the law allowing for special prosecutors requires that he show it is unlikely Newton would receive a fair trial.
Turner also maintains that Cheney hasn’t submitted the required credible proof in the form of an affidavit to support his request for a special prosecutor.
In his motion, Cheney cites Post Independent coverage of Steers’ accusations against Truden, but “those articles do not rise to the level of an affidavit,” Turner writes.
Cheney also includes an affidavit signed by Cassie Cerise, who says she is aware of the newspaper articles.
“However, she does not support the truth and validity of the content of the articles,” Turner argues.
He contends that there is no way to verify the statements in the newspaper articles, or their context. Regardless, he adds, prosecutors “deny the truthfulness of the allegations.”
Cheney indicates in his motion that finding others besides Steers who are willing to speak out against Truden isn’t easy.
“Most individuals having knowledge regarding the pertinent facts surrounding the serious allegations are intimidated from alleging any impropriety by the district attorney,” he wrote.
Despite his concerns about Truden, Cheney wrote that he hasn’t perceived that he has been subject to any prejudicial treatment from Turner.
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