MOLLIE TIBBETTS

Defense: Late notice on 'Clerical oversight' behind late notice on subpoena in Mollie Tibbetts' bank records Prosecution asks judge to make defense follow the rules

Cristhian Bahena Rivera talks to his defense attorney, Jennifer Frese, during a Nov. 14, 2019, hearing in  Poweshiek Cou
Cristhian Bahena Rivera talks to his defense attorney, Jennifer Frese, during a Nov. 14, 2019, hearing in Poweshiek County Courthouse on Thursday, Nov. 14, 2019 in Montezuma. (Pool photo by Brian Powers/Des Moines Register)

MONTEZUMA — Attorneys involved in the first-degree murder trial of Cristhian Bahena Rivera — accused of killing University of Iowa student Mollie Tibbetts in 2018 — spent Thursday arguing about subpoenas, specifically, the defense lawyers’ effort to obtain Tibbetts’ banking records.

Prosecutors, in a motion filed this week, argued the defense lawyers were not playing by the rules when it subpoenaed Tibbetts’ banking records from Bankers Trust in Des Moines.

Defense attorney Jennifer Frese countered, during a Thursday video hearing, that her office had not notified prosecutors of the subpoena — as required by law — because of a “clerical oversight” and not because the defense was “trying to be tricky.”

It turned out Bankers Trust didn’t have any banking records for Tibbetts anyway, leading 8th Judicial District Judge Joel Yates to ask if “we’re really fighting about nothing at this point.”

Assistant Iowa Attorney General Scott Brown said that was correct, but when he filed the motion to quash Frese’s subpoena, he didn’t know the subpoena had produced nothing.

The issue remains that the defense didn’t follow the rules and process to obtain a subpoena, which involves notifying prosecutors and entering it on court records. The defense doesn’t understand what that means, he said.

According to Iowa law, a defendant can’t obtain “routine” pretrial access to records of anyone who is not a witness unless ordered by the court, Brown said in his written argument.

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“I’m suspicious that there are others (subpoenas) out there,” Brown said Thursday.

Brown asked the court to quash this subpoena and make the defense follow the process.

Frese didn’t explain the effort to find Tibbetts’ banking records during the hearing but in her written argument said she and her husband/co-counsel were following up on an investigation started by the state into Tibbetts’ bank records. A tip was made to law enforcement Aug. 1, 2018, from a bank employee that Tibbetts had set up a bank account just before her death.

There also was information a transaction was made on the account at a tattoo shop after her death, according to the motion.

Law enforcement didn’t follow up on this tip, so the defense is “merely trying to fill the holes in law enforcement’s investigation,” Frese said in her written argument. She couldn’t reveal more specifics about the subpoena without revealing their trial strategy, she said.

Frese said the defense will likely send out several more subpoenas, including for bank records and information on the Iowa Sex Offender Registry.

Yates, the judge, said potential witnesses can’t be subpoenaed. He said he would review the issues and file a written order as soon as possible.

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.

Bahena Rivera’s trial is set for May 17.

Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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