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The Honolulu Advertiser
Posted on: Friday, March 5, 2010

Appeals delay planned April trial in Kaloko case


By Paul C. Curtis
The Garden Island

Hawaii news photo - The Honolulu Advertiser

The Kaloko Reservoir, in northeastern Kaua'i near Kilauea, showing the breach in the reservoir and the path cut by the water as it poured through the forest, killing seven people.

ADVERTISER LIBRARY PHOTO | March 14, 2006

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Hawaii news photo - The Honolulu Advertiser

James Pflueger

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LĪHU'E, Kaua'i The manslaughter trail of retired Honolulu auto dealer James Pflueger won't begin next month as previously scheduled.

With his attorney David Minkin on Wednesday filing a notice of appeal of earlier rulings by 5th Circuit Judge Randal Valenciano on defense motions, the criminal case is effectively stalled pending appellate action by other state courts either the Intermediate Court of Appeals or Supreme Court.

The case stems from the deaths of seven people as a result of the failure of the earthen dam of Kaloko Reservoir in March 2006.

Pflueger, 83, was not in court Wednesday.

"We are looking at a delay," Valenciano said while granting Minkin's motion to allow appeals of earlier rulings against motions to dismiss the case on grounds of double jeopardy and insufficient evidence for Pflueger's Kaua'i grand jury indictment.

Mark Miyahira, state deputy attorney general, argued the state's case, saying the two appeals would lengthen the appeal time and thus not lead to speedy resolution of the case.

Valenciano said he had to consider "judicial efficiency" and "case-management" issues, and granted the motion, knowing that the case will be out of his jurisdiction at least temporarily after Minkin's appeal is filed.

The judge said nobody knows how long the appeal process will take, but that the scheduled April 16 jury trial date "is not going to happen if an appeal is filed," and he won't schedule a new trial date until the appellate process is completed.

Valenciano ordered Minkin to ask for a trial date after the appeal process is completed.

Pflueger is charged with seven counts of manslaughter, a Class-A felony.

Valenciano in January denied defense motions requesting a change of venue, dismissal of charges due to double jeopardy, and dismissal of charges due to insufficiency of evidence or vagueness.

The judge granted Minkin's motion to drop the first-degree reckless endangering charge against Pflueger, but the seven manslaughter charges remain.

Brian Sun argued in January the defense motion for dismissal of charges for insufficiency of evidence or vagueness, saying there was "absence of evidence of certain elements" necessary for a finding of probable cause in manslaughter cases.

Sun also said the state showed no evidence that Pflueger's filling of the spillway in 1997 or 1998 created a danger, or that Pflueger was conscious of the risk of a fatal breach, and whether he ignored that risk.

Valenciano agreed with state Attorney General Mark Bennett that there was sufficient evidence to indict Pflueger.

Bennett said prosecutors did not have to show any recklessness, but did, quoting Tom Hitch telling Pflueger he can't fill in the spillway due to safety concerns.

There was probable cause, said Valenciano, adding that he is reluctant to interfere with grand jury proceedings or a grand juror's view in findings of probable cause.