Judge denies motion to dismiss prosecutor who previously represented man accused in Challis murder
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CHALLIS — The prosecutor in the Charles “Charlie” McBride murder case, will not be disqualified.
On Tuesday, during a three-minute hearing before Magistrate Judge James H. Barrett Jr., Public Defender David M. Cannon, representing defendant Benjamin J. Savage, asked the judge to disqualify Custer County Prosecutor Justin B. Oleson. The prosecutor previously represented Savage in a number of past criminal cases as a defense attorney, before becoming a prosecutor.
Savage, 36, is charged with first-degree murder in connection to the shooting of McBride.
Cannon filed the motion April 23. He says Oleson has defended Savage in at least 10 cases, in multiple counties over the past 15 years. EastIdahoNews.com reported on April 4 that Oleson had served as counsel for Savage, who pleaded guilty to misdemeanor malicious injury to property. In January 2017, Barrett sentenced Savage to one year of probation with 180 days of suspended jail time. That case was closed in January 2018, and Oleson remained as the attorney on record until he withdrew his name on April 25, according to court documents.
“In discussing this case (the murder charge) with me, defendant Benjamin John Savage raised the issue with me of his own attorney prosecuting him,” Cannon says in the motion. “He indicated that when he learned that he was a suspect in the above-captioned case, he contacted Mr. Oleson for legal advice.”
In the motion, Cannon believes Oleson has information about his client “which is privileged and confidential.” Cannon based this on his understanding of conflicts of interest he has learned in more than 20 years as an attorney in Idaho. Cannon claims Savage tells him he has never waived any conflict of interest with him and Oleson.
“Justice required that Mr. Oleson not act as the prosecuting attorney in the above-captioned case,” according to the motion.
Oleson’s response came on April 25 in an objection where he claims although the court has the authority to disqualify an attorney, Savage has not met the burden of setting the grounds of disqualification. In the objection, Oleson says Cannon did not specify what or if any confidential information obtained, or any specific legal grounds disqualifying him as the prosecuting attorney.
“The motion should be viewed with caution as it was filed by opposing counsel in an attempt to disqualify the attorney from prosecuting the defendant for a violation of the law,” Oleson says in the objection.
In an accompanying affidavit, Oleson admits he has defended Savage in several cases before being appointed as Custer County prosecutor. He claims he is unaware of receiving any confidential information and all he would know from representing Savage is information from police reports, which is public information. He also claims Savage knew in the case closed in 2018 that he was soon to be appointed as a prosecutor and if Savage was to ever commit a crime in Custer County again, he would be unable to represent him and would be prosecuting him instead.
“When the investigation into this matter began, Mr. Savage came into the Custer County Prosecutor’s Office and asked some questions about the investigation and how a polygraph examination would take place,” Oleson says in the affidavit. “He was advised at that time again that I was not his attorney and that if he wanted an attorney that he had the right to hire one.”
Chris Matson, an assistant in the prosecutor’s office, testified in a second affidavit that Savage’s mother told her Savage tried to hire Oleson in an ongoing civil matter between him and his ex-wife back in January 2017. Savage’s mother claimed Oleson told her son he could no longer take the case as it would be a conflict of interest since he was appointed as Custer County prosecutor, according to court documents.
Savage also tried to contact Oleson in another instance in 2018 where Savage was charged with domestic battery, Matson says in the affidavit. She claims Oleson cautioned Savage he was the prosecutor and not his defense attorney. In her statement, Matson confirms that on March 11, Savage came into the office to speak about legal advice about the then-pending investigation into the killing of McBride. Matson says Olseon again told Savage he could not provide legal advice since he is the Custer County prosecutor.
Court documents do not specify Barrett’s reasoning for denying the motion.
Motion for additional defense attorney
On April 16, Cannon filed a motion asking the court to approve a second attorney to represent Savage in the murder case. Cannon says while practicing law for over two decades he has zero experience handling a murder case. He cited the high load of information, including 29 witnesses, as a need for a second attorney for organization, analysis and review, according to the motion.
“This case would have been a capital case, and counsel for (the) defendant, who is not capital-case certified, would have been unable to defend this case, except that the state indicated it would not see the death penalty,” Cannon says in the motion. “It is still a murder case and will be complicated from a procedural standpoint.”
Cannon asked for help from Jim Archibald, who is a public defender in various neighboring counties and has experience in defending murder cases. Barrett also denied that motion.
Oleson has repeatedly not returned EastIdahoNews.com’s requests for comment.
Savage is expected to appear on June 10, for a preliminary hearing.