Attorneys representing several of the Beta Theta Pi members appeared in court Thursday to argue against a motion seeking to refile charges against their respective defendants and a motion to prevent one district judge from presiding over the potential hearing, taking time to bring into question the Centre County district attorney’s “tactics” in leaving out key evidence.
Assistant District Attorney Michael Osterberg appeared on behalf of the commonwealth to argue for the refiling of charges before President Judge Pamela Ruest. District Attorney Stacy Parks Miller was not present in the courtroom, saying in a Thursday news release that she would be out of the state for “required continuing legal education.”
Osterberg argued that the Pennsylvania rules of criminal procedure allow for the district attorney’s office to refile when they believe an error of law was committed, noting that the prosecution “still believes in these charges” and that the facts in the case are unchanged. He went on to reiterate than an investigating grand jury came to the charges through evidence and testimony, saying there was a “good faith basis” for the charges.
“The more complex a preliminary hearing is, the more difficult it is for a magisterial judge to understand it,” Osterberg said. “The complexity demands that the commonwealth get another shot before another magisterial judge.”
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He stated that the reason prosecutors waited 57 days to refile charges was due to new evidence that will be displayed during the next preliminary hearing. Parks Miller announced at the end of October that new video evidence, previously believed to have been deleted, was recovered and additional charges against formerly charged Beta members and new Beta members were made.
Osterberg noted that there is no law or prior case evidence barring the prosecution from refiling the case.
Attorneys for the defendants, however, pointed out that Parks Miller had not mentioned the inclusion of new video evidence in the motion, a move some attorneys said was a move to prevent District Judge Allen Sinclair, who presided over the initial preliminary hearing, from rehearing the case.
The attorneys argued that including new evidence in the motion would mean Sinclair would have to evaluate new evidence in his decision, bringing the case back before him. By leaving this out of the motion, they said, the commonwealth makes the argument that the same judge hearing the same evidence would come to the same conclusion again.
Andrew Shubin, representing Nicholas Kubera, claimed the only reason the district attorney’s office filed a motion for a refile was so they could have another hearing in front of a judge that was “acceptable to them.”
Frank Fina, representing Brendan Young, stated that it was the court’s responsibility to determine if Sinclair was fair and impartial in his judgment, saying neither the district attorney’s argument or motion provides a basis for an error in law. Steve Trialonas, representing Daniel Casey, echoed that argument, saying that disagreeing with the magisterial judge’s decision and committing and error of law are two completely different issues.
Attorneys also argued that Parks Miller has taken too many steps to try the case in the public sphere, pointing out several news conferences held by the district attorney following each day of the preliminary hearing and potentially spoiling the jury pool by the time the case sees trial.
Michael Engle, representing Gary Dibileo, alleged that the refiling of charges was based on “bad faith and harassment,” accusing the district attorney of putting the case on trial on social media and trying to “influence the matter for political and personal reasons.
“This is based on a district attorney who wants to remain in the media and remain relevant for as long as possible,” Engle said. “It’s time to tell District Attorney Parks Miller her 15 minutes are up.”
Ruest said she expected to issue a ruling in the near future.