Alleged secrets put biker trial on hold

| Monday, November 05, 2007

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The Associated Press

CUSTER — The trial of two Hells Angels bikers charged with starting a gunfight that injured six rivals is on hold until the South Dakota Supreme Court decides a claim from prosecutors that the judge is letting defense lawyers keep too many secrets.

Chad Wilson, 32, of Lynnwood, Wash., and John Midmore, 34, of Valparaiso, Ind., are accused of firing at least 16 shots at Outlaws Motorcycle Club members Aug. 8, 2006, at Legion Lake Resort in Custer State Park, where the Outlaws gathered for the Sturgis motorcycle rally 70 miles away.

Victims and witnesses told investigators that a white quad-cab pickup stopped near the group and a man got out and started firing a handgun. Then, an Outlaws member returned fire on the truck as it sped away.

Spent shell casings, bullets, bullet fragments and a Smith & Wesson handgun were found near the scene, according to court documents.

Wilson and Midmore were arrested that evening after they told an off-duty park ranger their pickup had broken down and they needed a ride.

The abandoned truck was found on a logging road with guns, ammunition and an empty .40-caliber magazine on the floorboard, according to court documents. Nearby — concealed in a hollowed-out log — were more weapons and bullets, a hand grenade, Hells Angels T-shirt and a toiletry kit, the documents state.

Wilson is a member of the Dago Chapter of the Hells Angels motorcycle club in San Diego, and Midmore is a prospect of the Haney Chapter of the Hells Angels in British Columbia, Canada, according to court documents.

Wilson and Midmore are charged with multiple counts, including conspiracy, aiding and abetting, and commission of a felony while armed. Wilson is also charged with five counts of attempted first-degree murder, which indicates investigators believe that he pulled the trigger.

The five Outlaws who were shot are: Thomas Hass, Al Mathews, Danny Neace, Claudia Wables and Susan Evans-Martin. Another woman, Crystal Schuster, suffered injuries unrelated to a gunshot. Their addresses are not listed in court documents.

Wilson and Midmore are being held without bond at the county jail in Rapid City.

Their trial in Custer has been delayed several times, and all proceedings in the case are on hold until the Supreme Court rules on a second appeal filed in the case.

The first appeal was prompted by a lower court’s ruling that defense experts could examine a gun clip found near the shooting scene before the state finished its testing.

Prosecutors asked the state Supreme Court to overrule that decision, but justices refused to take up the request, so the defense was allowed to proceed.

Lawyers for the state then filed a second appeal, which the high court granted.

They argued that Circuit Judge Jack Delaney made a mistake in approving a defense request to seal documents from an independent examination of the white Ford F-350 pickup the defendants supposedly drove.

Prosecutors also wrote in their argument that Delaney should not have prevented them from taking part in court proceedings held only in the presence of the judge and defense lawyers on issues such as evidence, representation of the men and possibly moving the trial.

If any such ex parte hearings were held about the pickup, the prosecution asked the Supreme Court to reverse the rulings “on the basis that such hearings were unauthorized” and stop the secret hearings, according to documents.

“It merely wishes to protect itself from loss of physical evidence. The state, as the defendant, has a right to participate in the adversary system,” the prosecution wrote.

State lawyers said they only have an issue with the process that has excluded them and acknowledge that the defense attorneys have the right to test evidence and protect their strategy.

Not so, wrote Robert Van Norman, the defense lawyer working with Hells Angels attorneys on the case, in his response.

The several requests to seal evidence were prompted by the prosecution’s refusal to allow the defense to have items examined and tested after the state was long done with them, he wrote.

The state finished checking the Ford truck months ago but wants to be present when the defense examines it and have access to the findings in order to determine the defense’s plans, Van Norman wrote.

“Defendants have detailed their reasons for needing the testing and have done so ex parte and under seal because their work product and theory of defense are directly implicated,” he wrote.

Delaney did not err in allowing defense lawyers to submit motions and briefs outside the state’s presence, nor abuse his discretion in granting the defense’s request to test the truck independently, Van Norman wrote.

Regarding the ex parte mention of possibly moving the trial, the conversation was limited, came up once and was a non-issue, he wrote.

“I think it’s simply a shame that these guys are sitting there as long as they are as this pretrial discovery process grinds on,” Van Norman said in an interview. “Let’s hope that      because the state Supreme Court has taken this appeal on an expedited basis, that the decision will also be expedited.”

Custer County State’s Attorney Tracy Kelley did not comment.

She and the other prosecutors have until Nov. 13 to submit their response to the Supreme Court. The soonest justices could consider the appeal is January.