In a petition filed with the Wyoming Supreme Court, attorneys claim that a Teton County deputy lied on the stand during a preliminary hearing.
Their petition for writ of review, filed Nov. 25, argues that judges should be able to consider someone’s credibility during a preliminary hearing, before deciding whether or not probable cause exists to send a case to felony court. In the filing, attorneys Tom Fleener and Devon Petersen are asking state justices to rule “that due process requires that witnesses at preliminary hearings must be credible and hearsay evidence must be reliable in order to be admissible and form the basis of probable cause.”
The filing stems from an Oct. 6 preliminary hearing in Teton County Circuit Court where Deputy Bret Bommer testified about his investigation into a third-degree sexual assault involving a teenager grabbing the breast of another teen and restraining her legs while in a hot tub last winter.
“On direct examination, in response to leading questions from the state and without any foundation, Deputy Bommer testified it ‘was his understanding’ that the alleged sexual contact happened at the same time as the alleged physical restraint,” the petition states. “On cross-examination, however, Deputy Bommer testified he didn’t know that the alleged sexual contact and the alleged physical restraint ‘all happened at the same event’ and that he thought ‘you’ve got possibly some separate incidents occurring.’ ”
At the end of the October hearing, Petersen told the court that Bommer’s testimony had not been credible. The case was bound over to district court, where the issue came up again.
Attorneys said they found evidence after the preliminary hearing that Bommer’s testimony regarding the closing time of the facility where the alleged crime occurred “was demonstrably false.”
The 9th Judicial District Court denied their motion for a new preliminary hearing, stating that circuit courts aren’t required to assess the credibility of witnesses.
The Wyoming Supreme Court petition puts the criminal case on hold in Teton County District Court.
In a joint email statement sent Tuesday to the News&Guide, Fleener and Petersen said they filed the petition because they believe the law needs to change.
“In this case, we believe Deputy Bret Bommer lied on the stand at the preliminary hearing in an attempt to continue a baseless prosecution against our client,” they wrote. “Unbelievably, the current state of the law instructs judges that they cannot consider a witnesses’ credibility during preliminary hearings. This creates jury trials where innocent people are fighting for their lives.”
They said they hope the Wyoming Supreme Court will agree that probable cause should be determined based on credible evidence.
“Without this ruling, law enforcement officers, like Deputy Bommer, will continue to be able to charge weak cases without credible evidence, and lie in order to prop them up,” they wrote in the email.
Petersen and Fleener argue that the lack of reliable evidence needed in preliminary hearings causes an undue burden on Wyoming’s criminal justice system and on defendants.
“This means that cases may currently proceed on non-credible, unreliable testimony and that there is essentially no judicial oversight of the professional function,” they wrote in the court filing.
The attorneys want the case against their client dismissed or a new preliminary hearing.