VanWeelden Attorney Files Motion For New Trial

Willie VanWeelden took the stand in his own defense during his early February trial.

Oskaloosa, Iowa – If the Defense has it’s way, a new day in court will allow recently discovered evidence to come to light and if the judge decides, could throw the verdicts out entirely; effectively acquitting VanWeelden.

Based upon allegations of misconduct and a recently surfaced copy of the April 6, 2009, DVD of the Supervisors meeting, that was recorded by CRI, “Defendant believes that under all of the forgoing circumstances, the Court should grant Defendant’s Motion in Arrest of Judgement and dismiss all three charges against Defendant or, at a minimum, grant Defendant Motion for a New Trial”.

We spoke with the Defendant’s Lead Attorney Matt Moore on Monday about the motion filed. Moore, who was limiting comment on pending litigation, said that typically a motion for a new trial is resolved within 30 days and a decision could be reached on the Motion before VanWeelden’s sentencing date of April 16, 2012. The Motion was filed on March 16th, 2012.

When I asked Moore if his clients life was going to go on normally, he responded “Absolutely”.

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In the defendant’s motion for a new trial and or motion in arrest of judgement, VanWeelden’s attorney Matt Moore filed the following:

• The two main prosecutorial witnesses were Greg Gordy (Gordy) and Lawrence Rouw (Rouw)-the other two Mahaska County Board of Supervisors at that time. Gordy and Rouw both testified at trial. Their testimony included, but was not limited to, the following:
• both testified they had no knowledge that Defendant’s wife had been added back onto the Plan until December of 2009, at which time they jointly took this information to the Mahaska County Attorney; then they jointly met with Mahaska County Attorney and another attorney, Carlton Salmons, who recommended that this matter be referred to the Attorney General’s Office;
• both testified the Defendant’s wife had been added back to the Plan ‘improperly’ by the Defendant without their knowledge or agreement;
• Rouw testified he had never indicated to Defendant that he was in agreement that ‘re-elected’ was synonymous with and meant the same as “newly elected” so as to met one of the exceptions to adding a participant back onto the Plan without underwriting;
• Rouw specifically denied that he had ever had any discussions with the Defendant regarding “re-elected” and “newly elected” or in regard to adding Defendant’s wife back onto the plan; 1 (It also came out during trial that, three weeks prior to trial, Rouw had obtain paper work which, if filled out, would allow him to run against the Defendant in the November 2012 Supervisor’s election.

VIOLATION OF THE RULE EXCLUDING WITNESSES AND ACTUAL COLLUSION BY STATE’S WITNESSES GORDY AND ROUW

4. Neither Gordy nor Rouw were designated as a representative for the State of Iowa thereby giving them the right to sit at counsel table or qualify under any exception to the Rule Excluding Witnesses which would have allowed them to be present in the courtroom during trial.

5. On Monday, January 30, 2012, the first day of the trial, prior to empaneling a jury, Gordy and Rouw were seen in the Courtroom glad handing and commingling with members of the jury pool.

6. At that point, counsel for Defendant advised the Court of the foregoing and informed the Court that the Defendant was seeking the “Rule Excluding Witnesses”. the court instructed all counsel that the Rule Excluding Witnesses would be in effect and then instructed the State to have Gordy and Rouw remove themselves from the courtroom.

7. Pursuant to the directions of the Court, both parties were to take the responsibility to ensure that their witnesses abide by this rule and conduct themselves accordingly.

8. On Tuesday, January 31, 2012, on the second day of the trial, the State called Rouw as its first witness. During Rouw’s testimony, Gordy was seen standing in the hallway outside the courtroom with his ear pressed against the courtroom door listening to Rouw’s testimony.

9. On Tuesday, January 31, 2012, still the second day of trial, the State called it’s second witness, Brad Rieman. During Rieman’s testimony, Rouw and Gordy were seen seated in the hallway next to each other engaging in a conversation that specifically included discussion about cross examination questions posed to Rouw and his answers to those cross examination questions. Rouw and Gordy discussed the importance of “keeping their testimony straight” with each other.

10. Referenced the affidavit of a witness attesting to the above in 9.

11. In addition to and in conjunction with the above affidavit, during Gordy’s cross examination, Gordy was questioned as to whether he had a “meeting” during the lunch recess with the State’s attorney and Rouw. Gordy was completely evasive and after several pointed questions finally conceded that they had “got together” over the lunch recess. Gordy’s responses to further, additional questions clearly indicated that he was concerned about revealing the full content of the lunch-time get together.

12. On February 1st or February 2nd, both Rouw and Gordy were in the courthouse hallway right next to the courtroom door listening to the testimony of other witnesses during the State’s case in chief. At this point in the trial, neither had been released and both were subject to recall by either the State or the Defendant. Defendant’s counsel brought their eavesdropping activity to the Court’s attention via an immediate sidebar conference and the Court instructed the States attorney to order both Rouw and Gordy to remain off the second floor of the Courthouse.

13. Defendant’s Exhibit ‘A”, Also demonstrates that it was apparently Rouw who informed Gordy about the Court’s instruction not to be on the second floor of the Courthouse rather than the State’s attorney.

14. The foregoing establishes that Gordy and Rouw not only violated the Rule Excluding Witnesses but actually engaged in collusion with each other in regard to their testimony so as to deprive Defendant of his right to a fair and impartial trial and due process as guaranteed by the Constitution of the United States and the Constitution of the State of Iowa.

NEWLY DISCOVERED EVIDENCE

15. Prior to trial, Defendant’s attorney was advised that Communication Research Institute (“CRI”) recorded some of the Mahaska County Board of Supervisors meetings and these CRI’s DVD recordings were housed at the Oskaloosa Public Library. The undersigned made inquires to the staff at the Oskaloosa Public Library who informed him that the CRI DVD’s were available only as to the supervisor meetings after May 2009.

16. Direct arrangements were then made with CRI staff and Defendant personally reviewed some of the CRI DVD’s of pre-May 2009 supervisor meetings. Defendant’s efforts were taken with the hope of finding evidence of any of the following: Rouw’s statements regarding his opinion that “re-elected” was synonymous with and meant the same as “newly elected”; the board of supervisors discussing Defendant’s wife addition back onto the Plan’ or any exculpatory evidence in regard to the allegations in this case. Despite his diligent search, the Defendant found no evidence.

17. At trial, both Rouw and Gordy denied any memory of the April 6, 2009, Board of Supervisors meeting discussion regarding agenda item “health insurance addendum”. Despite all of the email traffic surrounding this meeting and Defendant’s wife, both Rouw and Gordy refused to even admit whether the April 6, 2009, agenda item labeled “health insurance addendum” was in regard to Bonnie VanWeelden.

18. After the trial, the undersigned contacted CRI and inquired about the pre-May 2009, Mahaska Board of Supervisor meeting DVD recordings and whether one existed for the April 6, 2009, Mahaska County Board of Supervisor’s meeting.

19. After an investigation, the CRI director Sam Looney informed the undersigned that the April 6, 2009, meeting was recorded, however, it was only located after a search because the DVD was mislabeled and marked as “April 6, 2008”. Attacked as Exhibit “B” is the affidavit of CRI Director Sam Looney.

20. Attached as Exhibit “C” is Defendant’s affidavit in regard to his diligent review of the CRI DVD’s. Defendant’s affidavit combined with Sam Looney’s affidavit establishing that the April 6, 2009, CRI DVD was mislabeled and qualifies as “newly discovered evidence”

21. The Monday, April 6, 2009, Mahaska County Board of Supervisor’s Meeting Agenda identifies “health insurance addendum” as a subject for discussion. The April 6, 2009, CRI DVD has approximately eight (8) minutes and nineteen (19) seconds of discussion regarding this issue.

22. The April 6, 2009, CRI DVD recording establishes that Bonnie VanWeelden was the topic of discussion, the discussion centered upon her addition back on to the Plan and all three supervisors and Kay Swanson engaged in the discussion and the discussion with the salient points of that discussion as follows:

• Tom O’Brien, the Auxient representative in charge of the Mahaska County Health Insurance Plan account, had been to Oskaloosa the previous Friday (April 3, 2009). He had actually met with and discussed Bonnie VanWeelden’s addition back onto the Plan (either by amendment or addendum) with Rouw (and probably Gordy) 2, but that the Defendant was not present;
• At the beginning of the recorded discussion, Rouw made a statement regarding whether the discussion would be include “some personal stuff” requiring “a closed session”;
• Gordy responded to Rouw that the person in question would have to request the closed session;
• Defendant then specifically stated, “I thought we were treating this as newly elected”‘
• Defendant specifically stated, “How come I did not know this was coming”, in response to which Kay Swanson, the auditor and scrivener at the Mahaska County Board of Supervisors meetings, stated, “This is the addendum we got last week”, to which Defendant stated, “How come no one told me about this”…”are you guys having meetings here [without me]”…”it looks like I should know what’s going on and be involved because it concerns me”;
• Rouw then began a general explanation of Tom O’Brien’s entire amendment versus addendum discussion of the previous Friday and why it’s needed and his (Rouw’s) statement that it was his understanding that Defendant and Tom O’Brien had been discussing this issue for the last (3) months [and it was resolved]. This time frame would go back to the January 16, 2009, letter penned by Defendant to Tom O’Brien that the supervisors were “in agreement”;
• Rouw then specifically stated, in direct contravention of his trial testimony, as follows; “In my opinion a newly elec[sic] a re-elected official would be the same as a newly elected because your job was gone if you didn’t get re-elected”.(emphasis added)

23. Rouw’s statement that “re-elected” is the same as “newly elected” demonstrates that he was in agreement with the Defendant on this issue.

24. Rouw’s statement also unequivocally demonstrates that any reasonable person in Defendant’s position would be “justified” in believing that there was “agreement” amongst the Mahaska Board of Supervisors regarding Bonnie VanWeelden addition back onto the Plan under the “newly elected” official provision.

25. The April 6, 2009, CRI DVD is attached as Defendant’s Exhibit “D” and incorporated herein by this reference.

PROSECUTORIAL MISCONDUCT

26. Iowa law demonstrates an extremely low threshold for actions that deny a Defendant due process and constitute prosecutorial misconduct. See State vs. Graves, (holding that the prosecutor’s reference to the jury that Defendant was a “liar” was misconduct which denied Defendant due process and required a new trial).

27. On the first morning of the trial, the Court granted Defendant’s request for the Rule Excluding Witnesses and the State’s attorney was instructed to remove Rouw and Gordy who were glad handing and commingling with the jury pool. All counsel, both defense and prosecution, then had a duty to take all reasonable and necessary steps to enforce this rule and ensure that the Defendant received a fair and impair trial.

28. In this case, whether intentional or unintentional, the State failed to take adequate steps to ensure that the rule against witnesses was in effect and followed during the entire trial and must take some responsibility for Rouw’s and Gordy’s misconduct.

29. Rouw’s and Gordy’s misconduct is not limited to one isolated event, but was pervasive throughout the trial. Even prior to trial, the State should have recognized their alliance based upon their pre-trial union as follows: first, they jointly went to the Mahaska County Attorney in December of 2009 to report Defendant; second, they, along with the Mahaska County attorney, jointly met with attorney Carlton Salmons; third, they met with the DCI investigator Tony Birmingham on the same day; fourth, they jointly “got together” with the State’s attorney over the lunch break after Rouw testified but before Gordy testified; fifth, on the third day of the trial, the Court had to instruct the State’s attorney to order its witnesses away from the courtroom door and off the second floor of the Courthouse after they were observed eavesdropping on trial testimony.

30. Rouw’s and Gordy’s continuous misconduct occurred when neither had been released and both were subject to recall by either the Defendant or the State.

31. The State had a duty to actively instruct its witnesses as to the requirements and meaning of the rule and take reasonable steps to ensure compliance with the rule. This should have been done on the first morning of trial when the State had to remove Gordy and Rouw from the Courtroom. However, the foregoing events certainly demonstrate that the State ignored numerous signs that its witnesses were not respecting the rule and failed to instruct its importance to Rouw and Gordy.

32. The failure by the State to ensure enforcement of this rule denied the Defendant his right to due process as guaranteed to him by the Constitution of the United States and the Constitution of the State of Iowa.

TOTALITY OF CIRCUMSTANCES

33. Iowa law requires that Defendant VanWeelden is entitled to and receives a fair trial and all of the forgoing, combined, demonstrates that the Defendant was deprived due process and did not receive a fair and impartial trial.

34. All of the foregoing, combined, demonstrates that the record taken as a whole renders the jury verdict contrary to the law and evidence.

35. All of the foregoing, combined, demonstrates that any reasonable person in Defendant’s position would have believed that there was an agreement by two of the Mahaska County Supervisors in regard to adding his wife onto the Plan (i.e. Rouw and Defendant).

36. All of the foregoing, combined, demonstrates that if the Court would have had evidence about Rouw’s April 6, 209, “re-elect” meaning “newly elected” statement, it would have sustained Defendant’s Motion for a Directed Verdict. Defendant requests the Court to do so now.

37. All of the foregoing, combined, demonstrates that the misconduct by the State’s witnesses resulted in prejudice to the Defendant to such an extent that the Defendant was denied a fair trial.

38. All of the foregoing, combined, demonstrates that the State did not meet its duty to enforce the Rule Excluding Witnesses which resulted in prejudice to the Defendant to such an extent that the Defendant was denied a fair trial.

39. All of the foregoing, combined, demonstrates that serious and pervasive issues denying Defendant a fair and impartial trial.

40. All of the foregoing, combined, demonstrates that these acts and actions were in regard to the central issues in the case.

41. The use of the cautionary jury instructions could not reasonably be expected to cure the prejudice to the rights of the Defendant to have a fair trial.

CONCLUSION

Defendant believes that under all of the forgoing circumstances, the Court should grant Defendant’s Motion in Arrest of Judgement and dismiss all three charges against Defendant or at a minimum, grant Defendant Motion for a New Trial. Alternatively, Defendant requests this Court to set a hearing date, establish any briefing deadlines, review the April 6, 2009, videotape, and then grant any appropriate relief.

WHEREFORE the Defendant, Henry 2. VanWeelden, respectfully requests the Courts as follows:

1. On the strength of this Motion alone, the Court enter an Order in Arrest of Judgement and dismiss all three counts against him thereby acquitting him of these charges; alternatively

2. On the strength of this Motion alone, the Court enter an Order for a New Trial because the verdict is contrary to the law and evidence, new evidence vindicates the Defendant, and the Defendant did not receive a fair and impartial trial; alternatively

3. Defendant Henry W. VanWeelden respectfully requests this Court to enter an Order setting hearing, establishing any briefing deadlines, review the April 6, 2009, DVD, then grant any appropriate relief.

Dated this 16th day of March, 2012.