Prosecutor’s office excluded from manslaughter proceedings | Wyoming News

By Hannah Black Wyoming Tribune Eagle via Wyoming News Exchange

CHEYENNE – After being excluded from a recent hearing involving a man awaiting conviction on manslaughter and other charges, the Laramie County District Attorney has asked a district court judge to reconsider his actions.

In a motion filed last week, Laramie County District Attorney Leigh Anne Manlove challenged Laramie County District Judge Catherine Rogers to hold a closed or closed hearing on the 12th. November which excluded his office. The closed hearing included defendant Frank John McHenry; his lawyer, Cody Jerabek; Rogers; Rogers court reporter and prison staff.

Manlove alleges in the motion that the hearing included ex parte communications, or communications between a judge and an involved party without the knowledge of the other party, on substantive issues. The court did not notify affected parties of the ex parte communication or give it an opportunity to respond, as required by the Wyoming Judicial Code of Ethics, she said.

Ex parte communications may be permitted in certain limited circumstances, but Manlove writes that these do not seem to apply here – although, because she was not present at the hearing and does not have access to a transcript, which would have been sealed on the instruction of Judge Rogers, she cannot be completely sure of the judge’s motives or potential justifications.

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While Manlove was notified of the hearing by email before it took place, an order setting it for 3 p.m. on November 12 was not marked “filed” until November 15.

Manlove’s petition, dated November 16, also alleges that there was no evidence to support the state’s ban on the hearing, the closure of a hearing that would otherwise have been public, or the sealing of ‘a transcript, and that the court “inserted itself into the attorney-client relationship.”

The implicated defendant’s attorney, Jerabek, did not object to Manlove’s filing, according to the petition.

The district attorney on Thursday declined to comment on the case regarding his petition and the circumstances surrounding it.

Jerabek said in an interview Thursday that he “never had a case like this in my life”.

Bruce Moats, a local public access attorney who has represented numerous news organizations including the Wyoming Tribune Eagle, said he was concerned that the order setting the hearing was not filed until after the hearing itself, meaning it could not be challenged by the media. or anyone else. He was also concerned that there would have been no finding to justify closing the hearing.

Moats added that he had no experience with cases involving similar circumstances, with the caveat that he does not practice criminal law.

On the morning of Monday, November 8, Kim Wakefield, judicial assistant to Judge Rogers, informed Jerabek that the judge had scheduled an in-person hearing for Friday, Nov. 12 at 3 p.m., according to email correspondence provided by Manlove accompanying the petition. Wakefield wrote that the courtroom would be closed to everyone except Jerabek, McHenry, Rogers, the court reporter and prison staff. The transcript of the hearing would also be sealed.

Manlove has been copied to this series of emails.

Jerabek responded by asking what the purpose of the hearing was. Wakefield replied that she did not know and could only tell him that the judge had ordered her to schedule the November 12 hearing.

After the hearing, Jerabek wrote to Wakefield that, based on what happened during the hearing, McHenry asked him to file a motion for a change of judge. He said he would do it on Monday, November 15.

Jerabek told a Wyoming Tribune Eagle reporter on Thursday that he has decided to suspend the filing of this motion and that he plans to meet with McHenry again before making a final decision. He added that, in light of Manlove’s motion, “We’re going to kind of let this go on for a bit longer.”

McHenry’s sentencing hearing was set for November 12, then was postponed to Friday, November 19. On Thursday afternoon, McHenry’s sentencing was still set for 3 p.m. Friday.

Wakefield, Judge Rogers’ legal assistant, had not answered a reporter’s questions at the time this story was published.

Because it was a closed-door hearing, Jerabek said he couldn’t say what happened, although he said he expected it “to come. finally to the light, one way or another “.

However, an affidavit signed on Nov. 16 by Jeff Smith, an investigator in the DA’s office, may offer some insight. During calls from the Laramie County Jail to his mother, sister and a friend, McHenry is said to have recounted what happened at the hearing.

On November 11, McHenry told his mother that a closed hearing had been set and that the district attorney would not be at the hearing or allowed to review the transcript, which would be sealed.

On the evening of Nov. 12, after the closed-door hearing, McHenry told his mother that Judge Rogers “encouraged him to think about withdrawing his plea,” according to Smith’s affidavit. McHenry said Rogers told her it was her job to “protect her rights”, but that she “couldn’t say in open court that her rights had been violated.”

If McHenry chose to withdraw his plea, Rogers would appoint him to a new counsel from the Public Defender’s Office, he reportedly told his mother.

In the same appeal, McHenry said that Rogers would “transfer his case to another judge if he wished,” according to the affidavit, and that “she had spoken to everyone and the judge (from the county district de Laramie) (Thomas) Campbell would like to have McHenry in his courtroom and see that McHenry is brought to justice.

McHenry reportedly told his mother that he believed it stemmed from a conflict between Rogers and Jerabek. He said Jerabek told him that the judge had filed an ethics complaint against him, but that Jerabek had not been found guilty of breaking ethics. McHenry said Jerabek told him that an “ethics board” was investigating Rogers in connection with issues of a speedy trial.

McHenry reportedly reiterated these points in subsequent calls to his sister and a friend.

On November 13, McHenry spoke with his mother again, this time about the potential withdrawal of her plea. McHenry reportedly told his mother that his plea agreement said he could not withdraw his plea. His mother replied, “The judge said you can,” to which McHenry replied, “The judge said I can, very true. “

In a plea agreement signed Aug. 16 by McHenry, Jerabek and Manlove, McHenry agreed not to withdraw his plea once it was entered. Any attempt to do so would constitute a violation of the agreement, according to court documents.

Yet Rule 32 (d) of the Wyoming Rules of Criminal Procedure states that the court may allow a plea of ​​guilty or no contest to be withdrawn before sentencing “upon presentation by the accused of any just cause. and fair ”.

“At any later time, a plea can only be dismissed to correct a manifest injustice,” the rule continues.

Manlove on Monday requested a transcript of the closed-door hearing from Rose Terlesky, Rogers’ court reporter. Terlesky replied that the transcript had not yet been generated, but that Rogers had ordered it to be sealed, so that she would not be able to provide the transcript to Manlove.

In August, McHenry made a clear plea of ​​manslaughter, attempted manslaughter, two counts of aggravated burglary with a lethal weapon and four counts of interference with an injured peace officer, as part of a deal. advocacy.

On May 11, 2018, Laramie County Sheriff’s Deputies responded to the 5000 block of the South Greeley Freeway after a man reported that his daughter had been shot in the hip. During a search in the vicinity, a detective discovered the body of Joseph Steven Tortolito, 61, of Cheyenne hidden under several pallets.

Shortly after Tortolito’s body was discovered, a SWAT team made up of officers from the Sheriff’s Office and the Cheyenne Police Department saw a man, later identified as McHenry, enter and exit a nearby house holding a gun, according to court documents. McHenry rummaged through two vehicles before entering a third and starting it, backing it down the driveway until he was stopped by the SWAT team, which he drove to without incident.

McHenry was later discovered for breaking into two houses while armed, after taking a gun from one of the houses.

During an interview with law enforcement, McHenry did not cooperate and at one point attempted to exit the interview room through the ceiling, court documents show. He later injured a detective with a 3-foot piece of metal air duct.

After MPs attempted to restrain him, including with a Taser, McHenry tried to bite and hit them several times.

A pathologist confirmed during an autopsy on May 12, 2018, that Tortolito died of multiple gunshot wounds and that his death was declared homicide. The Wyoming State Crime Laboratory later found McHenry’s DNA on some of Tortolito’s clothes and several parts of the gun, according to court documents.

McHenry initially faced first degree murder and attempted murder charges in connection with the shooting.

Jerabek said at the time of McHenry’s plea that his client would plead without challenge because McHenry was under the influence of methamphetamine at the time of the incident and that he would not be able to provide a necessary factual basis to plead guilty. .

In the plea deal, the state and McHenry agreed to a maximum sentence of 14 to 20 years in prison, pending a sentencing hearing. The state dismissed a further charge of the offense of destroying property.


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