February 28, 2013 at 6:23 a.m.
Hildebrand case still unresolved
Attorneys argue over defense's demand for discovery
During a pretrial conference Tuesday, Penn said when he receives the discovery he is seeking - interviews with witnesses referenced in the criminal complaint - he suspects he will have enough evidence to challenge the affidavit and file a motion for discriminatory prosecution. Penn was particularly pointed in accusatory remarks he made to prosecutors Tuesday about the handling of the discovery, at one point forcing Judge Patrick O'Melia to intervene.
"I don't appreciate that (Oneida County Assistant District Attorney Steve Michlig) comes in here and talks about things - unless he's going to be the attorney of record - that he doesn't know what he's talking about," Penn said, adding that it hasn't been clear who is handling the Hildebrand case since Mike Bloom left the DA's office to take the Branch II judgeship.
Oneida County Assistant District Attorney Scott Moller is assigned the case, but Michlig appeared for the state Tuesday. Penn said he believes he has been clear about the discovery he hasn't yet received. According to Tuesday's discussion, Penn sent a letter about what he still needs to Moller who forwarded it to the sheriff's office.
Michlig described the demand for discovery motion Penn filed back in June as "boilerplate" and said the state has fulfilled that request. He questioned whether what Penn is still seeking would even be considered discovery.
"Give us a hint of what information he truly believes is there and why this information would be discovery," Michlig said, adding that he doesn't think the defense is entitled to every officer's report generated from a contact with a witness if that is indeed what Penn is seeking.
"Just because Hildebrand's name is mentioned in some report doesn't mean you're entitled to it," Judge O'Melia noted.
In the discovery he has received, Penn said he has interviews conducted with Hildebrand as well as one witness. However, he said there are additional witness interviews he should have.
"I don't think it's unreasonable to have any officers' reports or interviews of witnesses named in the complaint," Penn said.
The defense is entitled to all exculpatory evidence (favorable evidence that may show a defendant is not guilty). Penn said he believes the discovery he still wants could lead to such evidence.
"Anybody who has practiced law for long in Oneida County knows that when the sheriff's department doesn't turn over all the usual discovery right away, there's usually a problem," Penn said. "That's at least been my experience in the three or four times where it's happened."
The Hildebrand case remains on the court calendar for an April 11 - 12 jury trial. Penn may be requesting a motion hearing date before then for the court to consider the discovery dispute.
Hildebrand, 47, was initially charged in January of 2012. He had been facing charges related to the manufacture/delivery of amphetamine, more specifically what is known as "bath salts," but the state crime lab determined that the substances seized from Hildebrand did not contain either of the two controlled substances commonly found in "bath salts."
Those charges were dismissed and the DA's office filed five new felony charges related to the distribution of hazardous substances in May.
The criminal complaint includes information from several individuals, including a confidential informant who claimed to have received drugs from Hildebrand or used them with him. Also, during an interview with investigators, Hildebrand admitted to purchasing a substance similar to bath salts, from an overseas distributor, and providing the substance to others for the purpose of "getting high."
Hildebrand has also been charged with a sixth felony, theft in a business setting, for a $5,000 debt owed as part of work done for his construction company.
Each felony charge against Hildebrand allows for a maximum prison sentence of 3 and 1/2 years. He remains free on $10,000 cash bail.
Kyle Rogers may be reached at [email protected].
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