BY MALIA ZIMMERMAN – Will the 85-year-old James Pflueger ever face manslaughter charges for allegedly causing the deaths of 7 people when his dam breached in the early morning hours of March 14, 2006?
That is a question legal observers are increasingly asking themselves as attorneys for the multi-millionaire file for appeal after appeal in Hawaii’s state court system successfully keeping the aging Pflueger from potentially going to prison.
Most recently, Pflueger’s legal team headed by William McCorriston, filed an appeal to the Hawaii Supreme Court on October 12, the very last day that they could legally do so, with the state response to the Supreme Court coming just days afterward on October 27.
In this appeal, Pflueger is challenging an opinion issued June 23, 2011 by the Intermediate Court of Appeals that allowed his manslaughter case to go forward. The appeal to the Intermediate Court of Appeals came after a Fifth Circuit court ruling in February 2010 enabled the manslaughter case to proceed.
These petitions, which so far have delayed the trial at least 18 months, and could delay the trial another 5 or 6 months, are in addition to years of delays that Pflueger has managed to maneuver since being indicted in November 2008 on 7 separate counts of manslaughter, and one count of first degree reckless endangerment.
The state attorney general argues that Pflueger’s appeal, if accepted by the Supreme Court, gives him a “third bite of the same apple already presented to the ICA and Circuit Court.” The state also said that defendant’s appeal is “simply a dilatory tactic to postpone a trial that has already been delayed since 2009.” The State asked the court to deny the defendant’s petition, so that this case may promptly proceed to trial.
The legal tactics by Pflueger’s attorneys since the beginning have been extensive.
In February 2009, Pflueger’s attorneys moved to disqualify the department of the attorney general as prosecutor, and the circuit court denied this motion in August 2009, after granting defendant’s request for an evidentiary hearing on the matter (and allowing defendant to subpoena several State witnesses).
Pflueger’s attorneys also immediately filed two motions to dismiss the indictment, one on grounds of prosecutorial misconduct and the other for failure to present exculpatory evidence. The circuit court denied both motions in June 2009.
In Kauai’s 5th Circuit Court, Pflueger’s attorneys also moved to dismiss the indictment on double jeopardy, insufficiency of evidence and a vague manslaughter statute. Pflueger’s attorneys also tried to move the trial to Oahu. In February 2010, the circuit court separately heard and denied defendant’s motions. The trial had been successfully delayed another four months.
Vying for more time, Pflueger immediately appealed the circuit court’s order denying dismissal of the indictment on double jeopardy grounds, which led to the appellate court hearing, which he lost, which led to his appeal to the Hawaii Supreme Court.
The Supreme Court could accept or reject the case and let the lower ruling stand. If the case is rejected, it will return to Kauai’s Fifth Circuit Court for trial. If the Supreme Court accepts the case, oral arguments would likely be in the spring of 2012.
Double Jeopardy and Other Arguments So Far Rejected
The basis of Pflueger’s argument against the case moving forward in all three recent appeals is that double jeopardy, insufficiency of evidence and a vague manslaughter statute should force the state to drop the charges.
Former State Attorney General Mark Bennett, who argued for the state before the Intermediate Court of Appeals, said in court that double jeopardy does not apply.
McCorriston argued that Pflueger’s history of illegal grubbing and grading on his Kauai property without proper permits – and his subsequent prosecution by the state for those violations – should prevent his client from being prosecuted.
But Bennett pointed out in court, and the Intermediate Court agreed, that Pflueger’s 2002 violations were specifically for illegal grading on the south side of the reservoir.
As numerous witnesses noted, the illegal grading that allegedly caused the dam breach happened in 1997 and 1998 on the opposite side of the reservoir or the north side.
Bennett argued in court that there is more than enough evidence to allow the case to go to trial, noting that Pflueger was indicted in November 2008 after four days of testimony that included 20 witnesses and 207 exhibits and created a record of 607 pages. The intermediate court agreed.
Finally, the court disagreed with Pflueger that the manslaughter statute is vague in how it relates to his case.
There were multiple witnesses who told the grand jury that Pflueger created a potentially dangerous situation by covering the 118-year-old earthen dam’s only spillway, Bennett said. He noted in the state’s brief that Pflueger “failed to uncover the spillway right up to the day of the tragic dam breach.”
Pflueger’s Right to a Speedy Trial Set Aside
The U.S. Constitution guarantees that every one accused of a crime has a legal right to a speedy trial so they can clear their name, but Pflueger’s attorneys instead have been focused on forcing delays.
This despite the fact the Pflueger maintains he is innocent and that other parties, including the state and county governments and the dam’s maintenance company, are to blame.
At the center of the prosecution’s case is whether Pflueger knowingly covered the dam’s spillway, the dam’s only safety feature, recklessly causing their deaths.
The prosecution has a number of witnesses who say they told Pflueger that he had buried the spillway when he was illegally grading the area for home sites.
The deadly breach sent a tsunami of 370 million gallons of water down the mountain and onto the Fehring family’s 6-acre property on Kauai’s North Shore just before dawn.
The powerful waves that reached at least 20 feet high swept their daughter Aurora Solveig Fehring, son-in-law Alan Gareth Dingwall, and 2-year-old grandson, Rowan Grey Makana Fehring-Dingwall, to their death.
The roaring, raging wall of water also killed Christina Michelle McNees, who was 7 months pregnant, and Daniel Jay Arroyo, her fiancé who she was set to marry just hours later; Timothy Wendell Noonan, Jr., a friend who Aurora invited to stay with them after he lost his home; and Carl Wayne Rotstein, the Fehring’s caretaker and business partner.
It has not been negotiated as to whether Bennett, who brought the case against Pflueger, but now is in private practice, will return to argue before the Hawaii Supreme Court, should the justices decide to hear the case.
Bennett already returned once to represent the state pro-bono during May’s oral arguments before the Hawaii Intermediate Court of Appeals after a mutual agreement with the current attorney general.
Editor’s Note: Malia Zimmerman, editor of Hawaii Reporter, was subpoenaed in a Ka Loko Dam breach civil case by James Pflueger and in the criminal manslaughter case by the state attorney general.
Pflueger’s contention that other parties, including the very State that now prosecutes him, are at least partly to blame exposes a genuine conflict of interest on the part of the Attorney General, who is appointed and supervised by the Governor responsible for the department(s) charged with inspection of private and/or public dams. If he is guilty, then too is the State. Will they equally share in the punishment?
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