Fisher attorney seeks continuance
By Jason Stuart
Ranger-Review Staff Writer
District Judge Michael Hayworth granted a continuation in the omnibus hearing of accused murderer Todd Fisher Tuesday afternoon after Fisher’s lawyers successfully argued that the state has been remiss in delivering discovery evidence to the defense team.
Fisher is accused of killing his elderly father, Wilbur Fisher, in early October with a single gunshot wound to the head at their rural Dawson County residence.
Public defender Cynthia Thornton opened Tuesday’s hearing by complaining that the defense has not been given adequate time to study the state’s evidence in the case, saying that her team had just received large dumps of discovery evidence from the state on Monday with more delivered on the morning of the hearing. Furthermore, she said the defense believes they are still missing a significant portion of the discovery evidence.
“Until we have a chance to review (the evidence delivered Monday and Tuesday), I don’t think I can give a comprehensive and complete list of what all we may be missing,” Thornton said. “Even from (the state’s) own reports, we discovered there was quite a bit of discovery still missing. Right now, I’m not exactly sure (what discovery evidence) we’re missing. The problem I see is the state thinks we can go through an omnibus hearing with as little discovery as possible.”
Dawson County Attorney Brett Irigoin responded that the defense team has all the same evidence that his office does, but Thornton replied that wasn’t good enough.
“Just saying you’ve got everything we have, it’s more than that,” she said. “They have to give us everything their agents have.”
Thornton went on to complain that state investigators have consistently missed promised due dates for delivering evidence to the defense, adding that she thinks the state “lacks candor” regarding the delivery of evidence in the case. She went as far as to ask Hayworth to impose “sanctions against the state of Montana for discovery abuses and discovery failure.”
“We cannot proceed at this time without having full discovery, and it’s not the defendant’s fault,” Thornton said. “I just don’t understand it.”
Among the more specific complaints Thornton leveled against state investigators is that the investigative report from the Montana Department of Criminal Investigation agent in charge of the case has still not been completed or delivered. She also claimed that state investigators told her that the defense team would have to go to Helena or Billings in order to view the state’s case files and complained that the state has yet to provide a witness list or provide any details on the forensic evidence collected from the crime scene.
Hayworth directed questions based on Thornton’s complaints to an attorney from the Montana Attorney General’s Office appearing in the court via video conference. The Attorney General prosecutor said the state has been “working diligently” to deliver the evidence in the case, but admitted that the DCI agent’s report was still missing. As for the missing forensic evidence, the state prosecutor said the state crime lab is “very backed up,” adding that if the state does not get the results back in time to deliver to the defense before the trial — which is still scheduled for May 14 — that forensic evidence would be left out of the prosecution’s case against Fisher.
Hayworth pressed the state prosecutor for when the DCI agent’s report would be filed, as Thornton argued that “it should have been completed in October.” The prosecutor responded that the DCI agent has promised to complete the report by the middle of next week.
“He is ordered to do so,” Hayworth responded to the promised delivery of the DCI agent’s report.
The judge added that since the case is still in its first 200 days since the crime was committed, he is not currently in a position to assign blame for the delay in the delivery of discovery evidence. However, Hayworth also warned the prosecution that if the delays persist, the defense would be allowed to make the case that the state is to blame.
In the end, the missing discovery evidence in the case was enough for Hayworth to order a continuance of the omnibus hearing, with a new date set for March 2.
“The omnibus hearing today will obviously be continued,” Hayworth said.
Reach Jason Stuart at email@example.com.