The answer to whether a Hancock County murder case will go to trial next week hangs in the balance.
“We have a serious matter right now. A serious case of murder and it’s treated as it were a petty theft,” Hancock County Judge Jason Cuomo said Monday morning.
Family members of the victim are upset with the prosecution.
James Dimirak was indicted for the murder of Shawn Heinlein by the April Hancock County grand jury. Since then, his defense attorneys say, the prosecutor’s office has failed to follow the correct procedure to bring him to trial and have asked the case be dismissed. Something Judge Cuomo says he is considering.
“I cannot say how disturbed I am with the lack of witnesses, the lack of the submission of the testing to the authorities to be returned to the defendant,” said Cuomo. “And again, I reiterate, we have a man who was killed. We have another one whose life is hanging in the balance and is claiming he did not murder him in first or second degree, but (in self-defense). We have to assume, as we do in our system of justice, that theory is true and that he is innocent.”
The judge told the prosecution that they have until Wednesday to “submit a legal brief as to why the case should not be dismissed” due to the lack of witness list and evidence submission. The judge said he placed an order back on October 7 for that list.
“There are rules. There are things that have to be done to protect (the defendant’s) constitutional rights, and I know that there might be people out there that are friends and family of the I’ll call him the alleged victim, because we have to at this point that maybe don’t understand that, but the fact of the matter is the defendants have constitutional rights which have to be respected until that jury makes it decision, but we cannot get to the jury in this fashion. We can’t do it. This is not the way it works. And it makes me sick. It makes me sick to be in this position right now,” the judge added.
“The testing that should have been done or ordered at that time was not ordered until this court ordered to be done,” said defense attorney Sam Stillwell. “Meanwhile Mr. Dimirak is sitting here, again he is sitting here charged with murder, murder in the first or murder in the second degree. We don’t have fingernail scrapings which could be exculpatory to Mr. Dimirak. We don’t have a gunshot residue test, I assume of the hands of the deceased.”
“I agree there is no formal witness list,” said Hancock County Prosecutor James Davis. “The fact of the matter is, there have been lapses. There have been failures. To dismiss this case, is not, I don’t believe, an appropriate response to that at this point.”
Davis said there has been a lack of cooperation from witnesses and a break in the flow of information from investigating officers. Dimirak’s attorneys argued that they received the report from Detective Beatty of the Weirton Police Department back in January.
“Since at least January, you’ve had that one,” said Judge Cuomo.
“Then I missed that one, then. I didn’t think we had that one,” Davis said.
Members of the Heinlein family are very upset with the prosecutor after the hearing. They called this a “joke,” but they said they understand why the judge might have to dismiss the case, and do not blame him.
Stay with 7News as we wait on a decision from Judge Cuomo whether to dismiss the case .