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Prosecutors in the murder case against the man charged with killing University of Iowa student Mollie Tibbetts are accusing the defense of attempting to hide a subpoena meant as a 'fishing expedition” of Tibbetts' banking records.
Prosecutors weren't aware of the subpoena until after it had it had been served on Bankers Trust in Des Moines and returned to court records Jan. 21, according to a motion filed Tuesday by Assistant Iowa Attorney General Scott Brown.
Defense attorneys for Cristhian Bahena Rivera, charged with first-degree murder, directed the subpoena, which was issued Jan. 15 by the Poweshiek County Clerk, Brown said.
The defense didn't give notice to the state, according to the motion, and didn't enter it in the court's filing system, 'which would suggest that the intent of the defense was to keep the existence of the subpoena from the state and court,” Brown said.
'On its face, the subpoena appears to be a fishing expedition into the confidential banking records of Mollie Tibbetts, who is not a witness or party and is the person the defendant is charged with killing,” Brown said.
Defense attorneys didn't ask or receive approval by the court for the subpoena, which is required, and there is no trial witness from Bankers Trust listed by the prosecution, according to the motion.
Brown said subpoenas for records outside the context of a deposition or trial are prohibited in criminal cases. There isn't a 'records-only subpoena” in a criminal case - subpoenas are authorized only for witnesses to appear at a deposition or trial.
According to Iowa law, a defendant can't obtain 'routine” pretrial access to records of non-parties and anyone who is not a witness unless ordered by the court, the motion states.
The prosecution wants a court order quashing the subpoena and an order admonishing the defense from issuing subpoenas not connected to a deposition or trial; as well as direction to not issue subpoenas without giving notice to the prosecution and without court approval, according to the motion.
Brown also wants the defense to assure the prosecution that no other subpoenas like this have been issued, or if they have to be disclosed.
Eighth Judicial District Judge Joel Yates has set a video hearing on the motion for Thursday.
Bahena Rivera's attorneys, Chad and Jennifer Frese, have not filed response.
Bahena Rivera, 26, a Mexican national living illegally in the United States, is accused of fatally stabbing 20-year-old Tibbetts, who went missing July 18, 2018, while jogging in her hometown of Brooklyn, Iowa. Her body was found Aug. 21, 2018, in a cornfield where Bahena Rivera led authorities.
Authorities, during a hearing last November, said Bahena Rivera admitted to driving past Tibbetts on July 18, 2018, while she was jogging, then getting out of the car and chasing after her. Tibbetts threatened to call the police, authorities said, which angered Bahena Rivera.
Investigators obtained a surveillance video from a homeowner in Brooklyn that captured images of a jogger they believe was Tibbetts, which shows Bahena Rivera's vehicle, a black Chevrolet Malibu with distinctive chrome handles and mirrors, passing by her, according to testimony.
Bahena Rivera told authorities he 'blocked his memory” but later found Tibbetts' body in the trunk of the Malibu. He hid her body in the cornfield, according to testimony.
The state medical examiner's report determined Tibbetts died of 'multiple sharp force injuries.”
A murder trial is set for May 17.
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