Originally Published: May 31, 2012 9:58 p.m.
PRESCOTT - Attorneys for seven men accused in a shootout between rival motorcycle gangs in 2010 argued on Thursday that the charges should be thrown out because, they claim, a deputy county attorney intentionally and illegally withheld information from the two grand juries that indicted their clients and failed to give it to the defense.
Michael Koepke, John Bernard, Kevin Christiansen, Kiley Hill, Larry Scott Jr., Robert Kittredge and Bruce Schweigert, all allegedly associated with the Hell's Angels Motorcycle Club, face multiple charges in connection with a shootout with the Vagos Motorcycle Club in Chino Valley on Aug. 21, 2010.
Kopeke's lawyer, Richard Gaxiola, filed a motion to dismiss the case, and the other defendants' attorneys joined in, claiming a violation of due process as well as prosecutorial misconduct.
The motion stems from disclosure by the state that a witness who claimed he saw a confrontation occur between members of the two clubs at a convenience store was actually a paid confidential informant (CI) to law enforcement who had once tried to join the Hell's Angels and was turned away, only to become associated with the Vagos.
Gaxiola argued before Yavapai County Superior Court Judge Celé Hancock that the two grand juries who indicted the seven men were never told that Alfred Azevedo was working for GIITEM, the statewide Gang and Immigration Intelligence Team Enforcement Mission group, that he was paid to inform, and had been "rebuffed" in an attempt to join the Hell's Angels.
Azevedo was the only person who ever described a confrontation between the Hell's Angels members and the Vagos, Gaxiola said, quoting interviews with detectives. He also said that if Azevedo's credibility was questioned, then the entire case could be weakened.
James O'Haver, Scott's attorney, said the problem was compounded by the fact that Deputy County Attorney Dana Owens knew about Azevedo's situation but "sat on" the evidence, never telling the grand juries and only telling the defense afterwards, when it was too late for the attorneys to use it before the grand jury.
"I was flabbergasted," said O'Haver. "I have known Dana for years. I was astonished. She stood up here and said, 'No other evidence exists.' She said, 'We told the grand juries everything there was to know; we gave them the truth, the whole truth and nothing but the truth.'
"That is a lie," he continued. "She told you there was no other evidence, but she knew there was."
O'Haver referred to the Steven DeMocker document situation. "She tells you, 'I didn't know about this, so no harm, no foul,' but this is language the Yavapai County Attorney's Office has seen before" in the DeMocker case.
"This happens over and over and over in this county: The prosecution says, 'I didn't know,' and that apparently passes muster, because nothing ever happens," he said.
Owens said she is "not the lawyer these gentlemen are. I'm not that crafty," and that she had no "strategic plan" to advance the case by deliberately withholding the information. "I didn't place the significance on it that they do," she said.
Owens asserted that Azevedo was not working as a CI when the incident happened.
Hancock said, "Detective (John) Morris said (in prior testimony) that everywhere Mr. Azevedo goes, he is working for GIITEM. He does this for a living."
Owens said Azevedo was not the key to the case and that "what he has to say about what happened is not material."
Hancock interrupted her to point out that "This is where it all started," and that Morris testified to that fact to a grand jury, "Bottom line, when you distill down the arguments, the question is whether the defendants were prejudiced," Owens said. "It doesn't matter whether these gentlemen believe it was intentional or there is a scheme."
O'Haver said that, in cases such as this, the state has the burden to prove it did not harm the defendant's case.
"She committed a crime," he told Hancock. "She came here and lied to you. That's a crime."
The only way to stop these "shenanigans," he added, is to dismiss the case with prejudice, meaning it could not be refiled.
Hancock said she would take the motion under advisement and issue a written ruling.
She also warned the defendants that the conditions of their release on bond specified that they could not associate except with their attorneys while working on the case, and that she was "aware" that they had been talking.
Hancock said she would take up a motion to change those conditions of release at a later time, depending on how she ruled on the motion to dismiss.