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The Honolulu Advertiser
Posted on: Wednesday, January 7, 2009

Pfleuger pleads not guilty in Kauai dam collapse that killed 7

By Rick Daysog
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

James Pflueger

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Retired auto dealer James Pflueger pleaded not guilty yesterday to criminal charges stemming from the deadly collapse of the Kaloko dam, and his lawyer alleged that the state "manipulated" evidence to obtain the indictment.

The 82-year-old Pflueger was indicted in November on charges of manslaughter and reckless endangering after a dam failed on March 14, 2006, causing a flood that wiped out several homes downstream and left seven dead.

The indictment capped a two-year criminal investigation into reports that Pflueger filled in the Kaloko dam's spillway. The absence of a spillway, which acts as an overflow valve, may have contributed to the dam breaking during a month of heavy rain.

Pflueger's attorney, William McCorriston, said yesterday Pflueger did not cause the failure of the dam.

Trial is set for June 15 in Lihu'e.

McCorriston also said the state didn't present any evidence to the grand jury showing that Pflueger filled in the dam's spillway or hired anybody to do so.

"There are no eyewitnesses who said that they saw Mr. Pflueger was on a machine filling in the spillway," McCorriston said.

McCorriston said he will seek a dismissal of the manslaughter and reckless endangering charges because the attorney general's office withheld from the grand jury evidence that would absolve Pflueger of any crime.

McCorriston said he also will ask for a new hearing on a motion seeking to disqualify the attorney general's office from handling the case because of a conflict of interest.

McCorriston has argued that the state has a vested interest in pursuing the criminal case against Pflueger since it also is being sued by the families of the victims.

"This case involves a completely distorted viewpoint that has been held by the governor and the attorney general," McCorriston said. "He (Pflueger) has been unfairly singled out by the state."

Attorney General Mark Bennett would not comment on McCorriston's remarks, saying state law prohibits him from discussing matters presented before the grand jury.

"We're going to try this case in front of a jury of citizens on the island of Kaua'i and not in the press," Bennett said.

PFLUEGER IN ILL HEALTH

Pflueger offered his not-guilty plea before Kaua'i Circuit Judge Randal Valenciano from a private videoconference room in Honolulu due to ill health.

Pflueger, who had heart surgery in August, suffers from high blood pressure and vision problems, according to McCorriston.

Pflueger had trouble hearing the judge through the video connection but was able to respond to the judge after McCorriston repeated the questions for Pflueger.

Pflueger was indicted by a Kaua'i grand jury on seven counts of manslaughter and one count of reckless endangering for the deaths.

The collapse of the century-old Kaloko dam created a massive flood down Wailapa Valley.

According to McCorriston, the attorney general's office withheld key evidence that could acquit Pflueger of the criminal charges.

He said transcripts of the grand jury proceedings show that state prosecutors "ignored evidence that the dam blew from the bottom" and that the breach was not the result of overtopping.

He said soil samples taken by geological experts hired by Pflueger show that the bedrock beneath the dam gave way and that the dam's collapse was not due to overtopping and was not due to an absence of a spillway.

He added that a joint state-federal report issued in 1984 identified problems with the structural stability of the dam.

The report, prepared by the U.S. Department of Agriculture in cooperation with the state Department of Land and Natural Resources, found water seepage at the toe of the dam.

"We believe that good science will show that the spillway had nothing to do with the collapse of the dam," McCorriston said.

STATE INACTION ALLEGED

The failure to present to a grand jury evidence that can acquit a person could lead to a dismissal of a criminal case, said prominent local attorney Howard Luke.

Without commenting on the specifics of the Pflueger case, Luke added that prosecutors are ethically bound to present evidence that's "clearly exculpatory" to the grand jury.

McCorriston noted that Pflueger was the first person to inform the state about the lack of maintenance on the dam and that the state which is responsible for inspecting dams did nothing.

McCorriston also cited a 1990 letter from Pflueger to then-DLNR head Bill Paty giving state officials "carte blanche" permission to inspect the dam, but no such action was taken before the 2006 tragedy.

"Jimmy and I look forward to meeting these charges to show that he was not responsible for the dam's failure," McCorriston said.

Reach Rick Daysog at rdaysog@honoluluadvertiser.com.