Attorney general OK'd to stay in Pflueger trial


POSTED: Friday, July 10, 2009

LIHUE » Attorney General Mark Bennett will remain the lead prosecutor in the manslaughter case against Ka Loko Reservoir co-owner James Pflueger, a Circuit Court judge ruled yesterday.

After a lengthy hearing, Judge Randal Valenciano ruled that the attorney general's office has no conflict of interest in simultaneously prosecuting Pflueger and defending the state in numerous civil lawsuits relating to the March 2006 dam breach at Ka Loko, which killed seven people.

Pflueger's lawyers had argued that Bennett and his office were using the criminal case to bolster their chances of escaping liability in the civil cases brought by property owners in Kilauea downstream of the dam, as well as by family members of the victims.

Those cases name both the state and Pflueger — as well as the County of Kauai, the owner of the irrigation system, and others — as responsible for the dam breach and the subsequent 400 million-gallon flood.

William McCorriston, Pflueger's attorney, had also argued that the attorney general's office had a responsibility to build an “;ethical wall”; to keep the lawyers from the civil team and the criminal team completely separate.

Instead, the attorney general's office acknowledged that while they had not shared strategy, depositions taken in the civil case had been turned over to the prosecution team in October.

McCorriston said that amounted to “;a sucker punch”; to the civil lawyers, and that the attorney general acted in “;bad faith.”;

Bennett, however, said that the transfer of depositions saved money and time.

Valenciano said that while “;it is a better practice to have the wall in place,”; it was not necessary because the attorney general is, in essence, representing the same side in both cases.

McCorriston said after the ruling that more pretrial motions in the criminal case will be forthcoming, and an appeal of Valenciano's decision is “;very possible.”;

Pflueger was indicted in November for seven counts of manslaughter. The attorney general's office alleges that Pflueger filled in the reservoir's emergency spillway, which keeps water from flowing over the top of the earthen damn, thus causing the breach.

The six-to eight-week criminal trial was rescheduled for next April, while the civil trial into the wrongful death of the seven victims will be in May. A separate trial covering the property damage claims will follow.