Phillips' attorney files flurry of motions

2011-12-07T14:51:00Z 2011-12-07T17:13:35Z Phillips' attorney files flurry of motionsBy Kim Smith Arizona Daily Star
December 07, 2011 2:51 pm  • 

Pamela Phillips' murder trial is still scheduled to begin on Jan. 30 with jury selection and her attorney has been cranking out motion after motion.

Over the last week alone, Peter Herberg has filed nearly 20 motions asking Judge Richard Fields to preclude various pieces of evidence and to force prosecutors to turn over other items of evidence.

Most, if not all, of the evidence Herberg wants tossed out was used during the trial of Phillips' co-defendant, Ronald Young, who is currently serving a life sentence.

For example, prosecutors told jurors Young and Phillips met in Denver to discuss Gary Triano's death in May 1996 and Young came to Tucson a couple of months later to check the place out.

Herberg doesn't want prosecutors Bill McCollum and Casey McGinley showing jurors receipts from the Denver and Tucson hotels they say prove their theory. Nor does Herberg want them to use rental car and airline receipts.

In his motions, Herberg argues there's a problem with the chain of evidence for the receipts. In other words, he says there's an issue with the documentation showing how the receipts were seized, transferred, stored, etc.

In one motion pertaining to receipts from a Tucson Ramada Inn, Herberg says the state's planning to use copies of receipts, not the originals. He goes on to say "There is no evidence the records are not a fabrication created by a state agent. The chain of custody is stood on its head, in fact, reversed."

He also says the state can't provide a link between receipts dated in the summer of 1996 and Triano's November 1996 death.

McCollum has not yet responded to all of Herberg's motions, but he did respond to the one about the Ramada Inn.

In his response, McCollum notes the receipts were found in Young's van. He goes on to say, "The actual receipts were used in the trial of Ronald Young and are available by court order to be used in the trial of Pamela Phillips. The defense has notice of this fact."

In another motion, Herberg says prosecutors shouldn't be allowed to use Young's American Express statement with a line item about the Denver hotel.

The line item gives the same arrival and departure date (May 6, 1996) and Herberg says the state can't prove Young and Phillips spent the night there plotting Triano's death.

In fact, Herberg says he can prove Phillips was in Aspen that night and had a "very, very long telephone call" with her aunt in California.

In a related motion, Herberg asks Judge Fields to dismiss the case entirely, alleging prosecutors have "suppressed, destroyed and/or failed to preserve the subsequent monthly statements" of Young's credit card.

He says it would have proven Young's May 6, 1996, hotel and airline ticket reservations had been cancelled. 

In another motion, Herberg asks Judge Fields to force prosecutors to fork over those very same credit card statements.

Young was found in possession of two credit card statements that Denver detectives seized as part of an unrelated fraud investigation. (One of which included the Denver hotel line item.) Neither they nor local authorities ever subpoenaed additional credit card statements.

The defense attorney also wants prosecutors to hand over evidence sheets and logs he says they've been suppressing. They've only given him the "active" sheets and logs, he complains.

"The act of suppressing evidence is itself exculpatory and admissible to show bias and misconduct on the part of the Pima County Sheriff and Pima County Attorney, from which reasonable doubt may properly be inferred."

In response, McCollum and McGinley say everything that wasn't copied and given to the defense was made available to them "upon request during their viewing of the evidence at the PCSO headquarters building." 

They went on to say Herberg and co-counsel Michael Carrillo were given a "full copy of the evidence property sheets" and free access to copy machines.

In other motions, Herberg says he doesn't want prosecutors to be able to allege Phillips is cold, greedy or ungrateful and he doesn't want prosecutors to use greeting cards sent by Phillips to Young.

Prosecutors may try to portray Phillips as being greedy, but she was a millionaire when she married Triano and left the marriage with less than what she took into it because Triano took "extreme financial risks," Herberg said.

On the flip side, McCollum and McGinley have filed a motion asking Judge Fields to prohibit Herberg from smearing Triano's character.

How Triano treated his kids, managed his money and conducted his business "do not necessarily rise to the level of pertinence" unless a specific link can be made with an alternate suspect, the prosecutors wrote.

Lastly, Herberg wants prosecutors to have to show why they shouldn't be held in contempt of court for allegedly breaking disclosure deadlines. In addition to the other things he says they haven't given him, they haven't provided him police reports pertaining to third party suspects and their phone records. 

Hearings in the Phillips case are currently set for Dec. 12 and Dec. 19.

Not only will Judge Fields have to rule on the current motions sometime before Jan. 10, but he still has to make decisions on several other matters, including whether Phillips is mentally competent to stand trial and if the Pima County Attorney's Office needs to be removed from the case. 

 

 

 

 

 

 

 

 

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