James Pflueger, the retired auto dealer accused of seven counts of manslaughter — one for each of the lives lost on March 14, 2006, in the Ka Loko Reservoir Dam disaster — pleaded not guilty to all charges during his
James Pflueger, the retired auto dealer accused of seven counts of manslaughter — one for each of the lives lost on March 14, 2006, in the Ka Loko Reservoir Dam disaster — pleaded not guilty to all charges during his arraignment at 5th Circuit Court yesterday morning in Lihu‘e.
Pflueger, 82, appeared via closed circuit video feed from a private videoconference center in Honolulu. Still recovering from an August heart surgery, his traveling abilities have been hindered by high blood pressure, double vision and other symptoms, according to his attorney David Minkin.
He was flanked on a large projection screen in the courtroom by defense attorney Bill McCorriston and deputy attorney general Susan Won.
Throughout the proceeding, Pflueger appeared to have difficulty understanding Valenciano’s questions. McCorriston repeated or paraphrased essentially every query, audibly instructing Pflueger with comments like, “The answer is yes.” Pflueger at one point turned to McCorriston and asked, “What do you want me to say?” At the hearing’s conclusion, Pflueger announced, to nobody in particular, “there must be something wrong with my ears.”
Some 15 minutes earlier, at the proceeding’s outset, Minkin quickly entered on Pflueger’s behalf a plea of not guilty to all seven manslaughter counts, which carry a maximum of 20 years imprisonment apiece, as well as an eighth charge of reckless endangerment, which could tack on an extra five years. The charges were levied by a grand jury on Nov. 21.
When asked for input on a trial date, Minkin and deputy attorney general Mark Miyahira, who were both physically present in Lihu‘e, told Circuit Judge Randal Valenciano they had agreed to a starting date of either June 15 or June 22.
A June trial date would require Pflueger to waive his constitutional right to a speedy trial, implemented in Hawai‘i via Rule 48, which states the court is to dismiss charges if a trial has not commenced within six months of the charges being filed.
The oral waiver, confirmed first by Minkin and then by Pflueger himself, permitted Valenciano to set the trial outside of the normal range — other cases set yesterday for trial will commence in early March — to allow for what Minkin said will be a “voluminous” discovery process.
Miyahira told Valenciano his understanding was that the request was to accommodate California defense attorney Brian Sun. The judge replied that he was not likely to go out of his way to adjust his schedule for an attorney who is not yet licensed to practice law in Hawai‘i, expressing anger that Sun had participated in a conference call without informing the court of that fact. Minkin later said the delay was for he and McCorriston.
Sun — who was named one of America’s 500 leading lawyers by Lawdragon magazine in 2005, according to the Web site for his law firm, Jones Day — will reportedly be the lead attorney for Pflueger in both criminal and civil proceedings.
The June 15 start date set yesterday will likely be a “firm” one. The expected length of the criminal trial will push the court up against the scheduled start of the Ka Loko civil cases. Miyahira estimated it would take four to eight weeks, while Minkin said between six and 10.
The civil cases, to be heard in a nearby courtroom by Judge Kathleen Watanabe, were recently pushed back from February until Sept. 8 to allow parties to engage in court-ordered mediation beginning in March. A trial starting June 15 and lasting 10 weeks would conclude Aug. 24.
Minkin said the only caveat to the trial starting on time was Pflueger’s medical status, noting the criminal indictment has “definitely affected his health.” The attorney indicated Pflueger planned on being on Kaua‘i for the trial and went so far as to hunt down a piece of wood in the courthouse hallway to knock.
The attorney said he expected to receive discovery from prosecutors now that the arraignment was complete, and noted defense attorneys were planning to “vigorously follow through” on various motions, possibly including one to disqualify Attorney General Mark Bennett for a conflict of interest due to the state’s involvement in the civil case.
A similar motion was denied by Valenciano in the days preceding the grand jury’s indictment, but the judge left open the possibility of revisiting the issue if more information could be ascertained.
McCorriston said in a phone interview yesterday afternoon that the discovery process had already begun, as defense attorneys had already had a chance to review the transcript of grand jury testimony, saying the facts were “manipulated” to blame the deaths on one person.
“It was obvious to us that this was just scapegoating and a blatantly unfair presentation,” McCorriston said. “We were not surprised the grand jury came up with the conclusion they did because they heard a one-sided version of the evidence. But a trial jury is going to hear both sides, and I think they’re going to come to a different conclusion.”
Asked about prosecutors’ allegations that the filled-in spillway caused the dam’s failure, McCorriston said no evidence was presented to the grand jury that Pflueger filled it in himself or gave an instruction to have it filled, and noted there had been no presentation regarding the condition of the spillway prior to grading work.
McCorriston said the dam actually failed not from overtopping but from bedrock weathering at the base of the reservoir.
“That’s what happened. The dam slid out from the bottom, and that’s what our expert witnesses will testify to,” he said, adding he expected the trial to be a “great scientific debate as to the mechanics of dam failure.”
McCorriston said the manslaughter charge carries with it the assumption that Pflueger showed “reckless disregard of a known risk,” noting that the deceased were staying in unpermitted dwellings illegally placed in a flood zone.
“If the standard is you need to know the risk, how are you going to know there are squatters living next to a river? How is that foreseeable?” he said.
State Attorney General Mark Bennett told The Associated Press he will try the case in front of a jury of Kaua‘i citizens, not in the press.
“Mr. Pflueger looks forward to disproving the case,” Minkin said in an impromptu press conference outside the courtroom, adding the state was using the criminal case as an attempt to make Pflueger a “scapegoat.”
“He did not do anything wrong in this case,” Minkin said of his client. “It will all come out in court.”
• Michael Levine, staff writer, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.com
