Bebb lawyers say county prosecutor should be found in contempt of court
By Jim Phillips
March 24, 2008
Lawyers for a former Ohio University graduate student accused of murdering his father have asked a judge to either suppress a key piece of evidence in the case, or throw out the indictment against their client.
They claim the county prosecutor’s office violated a court order not to use up a blood sample in testing it, and should be found in contempt of court.
Prosecutor C. David Warren could not be reached for comment.
In motions filed last week in Athens County Common Pleas Court, defense attorneys Robert Shostak and Kort Gatterdam, who represent murder defendant Jonathan Bebb, argued that the testing done by authorities on a knife from the crime scene “was performed in direct contravention of a standing court order.”
They have asked Judge Michael Ward to suppress any results of DNA testing on the knife, and to hold county Prosecutor Warren’s office in contempt of court. They add that the alleged violations of discovery rules by the state may justify dismissing the indictment against Bebb.
Bebb, 32, is charged with aggravated murder in connection with the Sept. 24 stabbing death of his father, semi-retired OU history professor Phillip Bebb, at the older man’s home on Mulligan Road. Jonathan Bebb has pled insanity, and is now incarcerated in the regional jail in Nelsonville in lieu of bond.
According to a defense motion filed Friday, after Bebb was indicted, his attorneys filed a motion in Athens County Municipal Court, seeking to preserve evidence in the case and allow them access to it.
In a journal entry Oct. 8, Municipal Judge William A. Grim granted the motion, ordering that evidence listed in the defense motion should be preserved.
If the state wanted to conduct any testing on this evidence, Grim’s entry stated, prosecutors “shall notify defense counsel of the time and place of scheduled testing and allow counsel and any chosen consultant to observe such testing process.”
Bebb’s case was transferred to Common Pleas Court in November. On Jan. 24, according to Bebb’s attorneys, prosecutors “informally communicated” to them that if they tested the knife from the crime scene, that would use up all the blood on the knife and leave none for the defense to test.
Shostak and Gatterdam then quickly filed a motion to stop this from happening. Ward denied the motion on Jan. 24, clearing the way for the state to test the blood on the knife and use up the sample. However, the defense team argued in its recent motion, this Jan. 24 motion would have been the first time the state had the court’s permission to go ahead with the testing.
“Mere hours after the hearing on the motion, defense counsel learned that the state had already completed forensic testing on the entirety of the sample that was the subject of the hearing,” the new defense motion alleged. Therefore, Bebb’s attorneys concluded, Warren’s office must have conducted its testing before it had the judge’s permission to do so, directly violating Grim’s court order from October.
When the state violates a court order, Shostak and Gatterdam maintained in their recent motion, a judge has discretion to impose an appropriate sanction – which can include dismissing the indictment against the defendant, if it appears the state deliberately withheld evidence that could help the defendant’s case.
If Ward doesn’t choose to throw out the charge against Bebb, they contended, he should at least suppress the testing results on the knife. Shostak and Gatterdam have asked for a hearing on the issue.
IN OTHER NEW MOTIONS, they have asked Ward to suppress any statements Bebb has made to law enforcement officers.
The attorneys argued that Athens Police officers questioned Bebb at his Richland Avenue apartment after his father’s death without reading him his Miranda rights.
Questions officers asked Bebb before Mirandizing him included “such things as his whereabouts the previous day, his relationship with his father, and how he sustained a cut on this thumb,” the motion stated. “Clearly, the APD considered (Bebb) a suspect in the homicide, but never informed him of his status as such, so (he) continued to answer their questions, making several statements that the State may seek to use at trial in this case.”
The motion also raised again an issue that Bebb’s attorneys have raised before, that after Bebb was taken to the police station, Shostak, who was hired by Bebb’s mother, tried to get in to talk to Bebb, but was denied access, even after he enlisted the support of Common Pleas Judge L. Alan Goldsberry.
In addition, the motion claimed that Bebb expressed to police “at least twice” that he wanted to see an attorney, but that they told him having an attorney during the questioning “would not be ‘convenient.’”
In a third motion, Shostak and Gatterdam have asked Ward to suppress other evidence in the case, including items seized from Bebb’s apartment, his vehicle, his stepfather’s home, Bebb’s e-mail account, his desk at the OU Convocation Center, and his laptop computer.
Police got warrants to search these places after questioning Bebb at the police station. Because the legality of a search warrant “flows automatically from the arrest,” the defense motion maintained, “the critical issue here is the legality of (Bebb’s) warrantless arrest.”
Shostak and Gatterdam alleged that the arrest was not justified legally because police had no probable cause to suspect him of a crime, and was in fact “nothing more than a pretext” to conduct the searches.
The single affidavit used to obtain all the search warrants contained “rumor, speculation and innuendo,” the motion claimed, but no direct physical evidence or testimony linking Bebb to his father’s death.
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