An attorney representing a circuit judge charged with negligent homicide in the death of his 17-month-old son who had been left in a hot car for five hours said Tuesday that the Hot Springs Police Department has lost some evidence.
On May 12, defense co-counsel Erin Cassinelli of Lassiter & Cassinelli filed a motion saying the prosecution had not turned over all the evidence in the case.
The prosecuting team led by special prosecutor Scott Ellington of Jonesboro said on May 16 that everything was turned over to the defense. When asked Tuesday if the defense had the whole file, Cassinelli said that the Hot Springs Police Department has "apparently lost evidence" in the case.
Cassinelli said the defense has received "some, not all" of the evidence. She "received something recently" but is "not able to view it," she said.
When contacted by an Arkansas Democrat-Gazette reporter, deputy prosecutor Thomas Young said that crime-scene photos were misplaced when the Hot Springs Police Department changed computer servers.
"Losing something and not being able to retrieve it are two different things," Young said. "It's somewhere in that electronic world and they don't know how to retrieve it. It does not mean it's impossible to retrieve it. It does not mean that it's not there. It means that we do not know how to access it at this time."
Young said the photos are not critical to the case and are not the reason his office made a request to the court Tuesday to delay the trial, which is scheduled to begin next week.
"It's pictures of the judge's parked car. And that's it," he said. "It's not the huge thing Miss Cassinelli would like us to believe. We're not incompetent hicks. This does not impact the case. It only means that we will not have a pretty picture to show the jury."
More time is needed to prepare for the trial of Garland County Circuit Judge Wade Naramore after the lead prosecutor was reassigned to the Jonesboro office and after the defense announced last week that it was calling an expert witness, Young said in a continuance motion Tuesday.
"We object," Cassinelli said. "There is no reason to justify even further delaying a resolution. It's been nearly a year."
As of late Tuesday, special Circuit Judge John Langston had not ruled on the prosecution's motion. An omnibus hearing is set for 10 a.m. Friday, with a jury trial scheduled for June 14-17.
Naramore, 36, of Hot Springs, was arrested Feb. 11 in the July 24 death of his 17-month-old son, Thomas. Authorities determined that Thomas died from excessive heat after being left unattended in Naramore's car. Naramore has pleaded innocent.
Young said it would be "impossible" to adequately prepare for the trial by next week.
"We are trying to do this in the most fair and efficient way both to the defendant and the state," Young said.
In a legal response made Tuesday by defense attorney Patrick Benca, the defense said that the state has not made a "good faith attempt" to prepare for the June 14 trial date.
"The fact is that Mr. Ellington solely controlled the circumstances that give rise to his motion for continuance and should not now be permitted to use circumstances that he created to justify a delay," the defense answer stated in the motion.
The prosecutor's motion to delay the trial said that the defense did not disclose until May 23 that David Diamond would be called as an expert witness. Diamond is a psychology professor at the University of South Florida. He has done extensive research on "Forgotten Baby Syndrome," when parents leave their children in vehicles.
The prosecutors need time to interview Diamond before the trial or to consult with an expert witness of their own, Young said in the court filing.
Young said he was surprised that the defense was calling Diamond to testify.
"The defense calling an expert witness is unusual," Young said. "It rarely happens."
The defense motion said prosecution has known about Diamond for quite some time and was offered an interview with him in December.
"Mr. Ellington declined," the defense attorneys' response stated. "Having knowledge, then, that the defense had an expert to speak about the case, it is disingenuous to now claim a lack of notice."
The defense team at that time also provided Ellington with an article from The Washington Post in which a "healthy discussion" from Diamond is included.
Also included in the discovery material that the prosecution did not release until May 17 -- after the defense filed a motion to compel the prosecution to turn over evidence -- was a document from the state Department of Human Services explaining how a parent could unknowingly leave a child in a car. Diamond was cited in that document.
"The state is hardly in a position to claim surprise at the naming of Dr. Diamond as an expert in the case," Tuesday's defense motion read. "Indeed, it had been aware of Dr. Diamond since at least September 11, 2015."
Young also referred in Tuesday's court filing to a defense motion "filed under seal."
When asked if the sealed motion involved negotiations to settle the case, Young said he legally could not comment.
When Cassinelli was asked the same question, she simply replied, "Nope."
Young offered several alternative trial dates in his motion, with the earliest in late August and three different dates for October.
Naramore has been suspended from his role as a circuit judge because of the charge and, as legally required, is remaining on paid leave until the conclusion of the case.
Metro on 06/01/2016