Judge rejects Piri’s defense subpoena in Rt. 103 murder case

By Shawn Cunningham
© 2022 Telegraph Publishing LLC

BRATTLEBORO

Last Wednesday’s hearing in the second-degree murder case of Jozsef Piri focussed on a head-scratching situation for not only the Windham County State’s Attorney but the judge as well when defense attorney Adam Hescock sought information using a subpoena instead of accepted avenues for gaining information as he seeks to mount his client’s defense. At one point Judge Katherine Hayes told Hescock that his backdoor maneuver “seems a little sneaky.”

The brouhaha arose when Hescock – who is representing Piri on charges that he shot and killed truck driver Roberto Fonseca-Rivera  while driving on Route 103 in Rockingham on Nov. 1, 2019 – issued the subpoena to Lt. Anthony French, the commander of the Westminster Barracks of the Vermont State Police. Deputy State’s Attorney Steven Brown objected to the move on the grounds that it was his office, not the state police who had “custody and control of the information” and he filed a motion to quash the subpoena. A motion is a request to a judge for a ruling or an order.

Piri, who was released on $250,000 bond and is required to remain at his home in Naples, Fla. attended the hearing remotely but never turned on his video.

The subpoena “commanded” that VSP produce “any and all written, electronic, and/or digital communications” related to the its automatic license plate reader investigation.

The plate reader on I-91 south is the property of and operated by the Federal Bureau of Investigation. According to Deputy State’s Attorney Steven Brown, much of the information is in the custody of the U.S. government and “we have no authority to demand discovery from our federal partners.”

“We are not claiming that the defense is not entitled to any of the information,” said Brown, adding that serving a subpoena on State Police when information regarding the case is in the custody and control of the State’s Attorney’s Office is not the way to get it.

Normally, defense lawyers will begin by seeking information through discovery, which is the formal process of exchanging information between the parties about the witnesses and evidence they will present at trial.

Brown said that the proper way to get the materials is in a routine discovery request and that his office would be “happy to make good faith attempts to get the documents.”

Brown also said the clearest way to handle the situation would be for Judge Hayes to quash the subpoena and for Hescock to make the discovery request.

Hescock explained that the state has provided the defense with photos from the plate reader but what he is looking for is the requests for information from State Police to the FBI. He also said he wants notes or other relevant information on how the police arrived at the time frame for the information they requested from the license reader.

Noting that the subpoena did not give a date for the information Hescock requested, Hayes suggested that he narrow his request. Hescock replied that he thought that the date was implicit in the request.

“Oh golly I don’t think lawyers want to be implicit,” said Judge Hayes. “It should be explicit.”

That was followed by an extensive back and forth between Hayes and Hescock with the judge suggesting that a discussion with the prosecution to narrow the scope of what she called a “very broad” subpoena and making a discovery request instead.

“Nothing in the rule says I can’t” issue a subpoena, said Hescock.

Hayes urged Hescock to go the discovery route and come back to her if that does not produce the desired results.

“File a motion with me,” she continued. “That’s what judges are for.”

In the end, Hayes gave Hescock 30 days to refine his request and work with Brown on discovery. She also said that she would get involved if there’s a dispute and the request is not resolved after 45 days.

Brown asked Hayes to grant the motion to quash Hescock’s subpoena, which she did.

Hescock then said he would be filing a motion to compel the state to release the information he was requesting.

Hayes told Hescock she couldn’t tell him not to file the motion, but suggested that he discuss it with the prosecution as a discovery request first.

Clues to the defense strategy?

In his objection to the state’s motion to quash the defense subpoena, Hescock included some sense of where a possible defense might go.

The document says that the state’s case relies on several erroneous presumptions, among them:

• that Piri left his second home in Vermont risking a prison sentence for traveling with a gun through Massachusetts on his way home to Connecticut. The objection says this is unlikely since he is a doctor, a husband and a father of two.
• That Piri would have to be “an incredible marksman” to fire the shots that hit the truck’s windshield – one of which killed Fonseca-Rivera.
• That not only was he have to be a marksman, but that he would have to be “exceedingly efficient and undetectable” since no witnesses came forward to report having seen the shooting.
• That the state’s case relies on the fact that Piri fired with both vehicles in motion and that the mortally wounded Fonseca-Rivera had the presence of mind to pull over and stop.
• That the statements of two witnesses who say they saw either the truck door open or the driver reaching up to the visor in the cab but did not see the shooting are not credible.
  
• That there could have been an alternate shooter based on Fonseca-Rivera’s light sentence in a drug conspiracy case where he testified against his co-defendants. The defense says the state did not follow “ample motive and evidence” of an alternate shooter.