A Shenandoah County Circuit Court judge on Wednesday rejected a motion to dismiss a child abuse case involving a Woodstock day care center employee.
The Commonwealth’s Attorney’s Office indicted Katie LeDane and Jamie Pence in January in companion abuse/neglect cases. Pence is the director of Pollywog Place where LeDane was working.
LeDane faces four child injury/cruelty charges and two assault and battery charges.
Initial proceedings left LeDane’s attorney Ryan Nuzzo and the Commonwealth’s Attorney’s Office to square away discovery evidence before March 5. LeDane was indicted on Jan. 15.
On Wednesday, Nuzzo said that the Commonwealth's Attorney’s Office had been cooperative for most of the time leading up to the discovery deadline. However, after the deadline had passed, and all of the discovery was still not turned over, Nuzzo said he sent several emails to Amanda Strecky, the assistant commonwealth's attorney who was assigned to the case.
Nuzzo said that on March 13 Strecky told him that Bryan Layton, the assistant commonwealth's attorney, had been assigned to the case instead.
Following several emails between March 15 and April 5 with no response, Nuzzo said he felt he had no choice but to file a motion with the court to ask for the case to be dismissed with prejudice.
Nuzzo argued that his client, himself and the court had been prejudiced against by the Commonwealth’s Attorney’s Office's failure to comply with the March 5 deadline.
Nuzzo said he had tried to accommodate Layton, who joined the office after leaving the Warren County Commonwealth’s Attorney’s Office, by not filing motions as soon as the deadline was past. Nuzzo said he tried to carve out time to meet with Layton to see some of the discovery but when his requests went unanswered he felt he was running up against the clock on the case.
“At some point I can’t beg for discovery,” Nuzzo said in court on Wednesday.
The fact that the Commonwealth’s Attorney’s Office had complied with the deadline to turn over discovery for Pence’s case meant that the office should have been prepared to provide him with the relevant material for LeDane’s case, Nuzzo said.
Layton said the two cases were not identical and the office, which is understaffed, had to ensure they reviewed all of the video evidence it had relating to LeDane before it was given to Nuzzo.
Nuzzo acknowledged the evidence isn’t identical but when the Commonwealth's Attorney’s Office filed the indictment, “they [knew] a request for discovery [was] coming,” he said.
Layton said prosecutors didn’t turn over all of the discovery for Pence’s case in March and new information was still coming in. He acknowledged that the delay in providing Nuzzo discovery evidence “should not have happened but it wasn’t done with malice.”
Nuzzo countered that it may not have been malicious but it was “grossly neglectful.”
“The court’s orders must mean something,” Nuzzo said about meeting deadlines. Prosecutors argue that if defendants miss court-ordered deadlines they go to jail, he said. For the orders to mean something, prosecutors need to be held accountable for deadlines too, he said.
Judge Kevin C. Black said he understood Nuzzo’s frustration but dismissing a case with prejudice, preventing prosecutors from being allowed to re-file the indictment, was an extreme measure considering no trial date had been set.
“There comes a point when the court is compelled to do the extreme,” Black said. “I don’t feel compelled today.”
Failure to move forward with the case due to lack of discovery was inconvenient, Black acknowledged, but without a trial date or right to speedy trial concerns, he said prosecutors had not prejudiced Nuzzo or LeDane.
Black told Layton he had until June 5 to turn over discovery and anything not provided by then would not be admissible at trial.
LeDane will appear in court again on Aug. 17 for pre-trial motions and for the court to set a trial date.