CHEYENNE – After being barred from a recent hearing involving a man awaiting sentencing for manslaughter and other charges, the Laramie County district attorney has asked a district court judge to reconsider her actions.
In a motion filed Tuesday, Laramie County DA Leigh Anne Manlove challenged Laramie County District Judge Catherine Rogers’s setting of an “in camera,” or closed, hearing on Nov. 12 that excluded her office. The closed hearing included defendant Frank John McHenry; his attorney, Cody Jerabek; Rogers; Rogers’s court reporter and jail staff.
Manlove alleges in the motion that the hearing included ex parte communications, or communications between a judge and an involved party without the other party’s knowledge, about substantive matters. The court had not notified involved parties of the ex parte communication or given it an opportunity to respond, as is required by the Wyoming Code of Judicial Conduct, she said.
Ex parte communications may be allowed in some limited circumstances, but Manlove writes that these do not seem to apply here – although, because she was not present for the hearing and does not have access to a transcript, which was allegedly sealed at the direction of Judge Rogers, she can’t be completely sure of the judge’s motives or potential justifications.
While Manlove was made aware of the hearing via email before it took place, an order setting it for 3 p.m. Nov. 12 was not marked “filed” until Nov. 15.
Manlove’s motion, dated Nov. 16, also alleges there was no evidence to support barring the state from the hearing, the closure of a hearing that would have otherwise been public or the sealing of a transcript, and that the court “inserted itself into the attorney-client relationship.”
Counsel for the involved defendant, Jerabek, did not object to Manlove’s filing, according to the motion.
The district attorney on Thursday declined to comment on the record about her motion and the circumstances surrounding it.
Jerabek said in a Thursday interview that he had “never had a case like this in my life.”
Bruce Moats, a local public access attorney who has represented many news outlets, including the Wyoming Tribune Eagle, said it was concerning that the order setting the hearing was not filed prior to the hearing itself, meaning it could not have been contested by the media or anyone else. He was also concerned that there had allegedly been no findings justifying the closure of the hearing.
Moats added that he did not have experience with any cases involving similar circumstances, with the caveat that he does not practice criminal law.
The morning of Monday, Nov. 8, Kim Wakefield, judicial assistant to Judge Rogers, notified Jerabek that the judge had scheduled an in-person hearing for 3 p.m. Friday, Nov. 12, according to email correspondence provided by Manlove accompanying the motion. Wakefield wrote that the courtroom would be closed to everyone, outside of Jerabek, McHenry, Rogers, the court reporter and jail staff. The transcript of the hearing would also be sealed.
Manlove was copied on this series of emails.
Jerabek responded by asking what the purpose of the hearing was. Wakefield replied that she didn’t know and could only tell him the judge had directed her to set the Nov. 12 hearing.
Following the hearing, Jerabek wrote to Wakefield that, based on what had taken place during the hearing, he’d been directed by McHenry to file a motion for a change of judge. He said he would do so on Monday, Nov. 15.
On Thursday, Jerabek told a Wyoming Tribune Eagle reporter that he had decided to hold off on filing that motion, and that he planned to meet again with McHenry before he made any final decisions. He added that, in light of Manlove’s motion, “We’re going to kind of let it play out a little bit longer.”
McHenry’s sentencing hearing had been set for Nov. 12, and was then reset to Friday, Nov. 19. As of Thursday afternoon, McHenry’s sentencing was still set for 3 p.m. Friday.
Wakefield, Judge Rogers’ judicial assistant, had not responded to questions from a reporter by the time this story was published.
Because it was a closed hearing, Jerabek said he could not say what happened, though he said he expects it to “come to light eventually, in some way or another.”
However, an affidavit signed Nov. 16 by Jeff Smith, an investigator for the DA’s office, may offer some insight. In calls from the Laramie County jail to his mother, sister and a friend, McHenry allegedly relayed what took place during the hearing.
On Nov. 11, McHenry told his mother that a closed hearing had been set, and that the district attorney would not be in the hearing or allowed to review the transcript, which would be sealed.
The evening of Nov. 12, following the closed hearing, McHenry told his mother that Judge Rogers had “encouraged him to think about withdrawing his plea,” according to Smith’s affidavit. McHenry said Rogers told him it was her job to “protect his rights,” but that “she could not say in open court that his rights had been violated.”
If McHenry chose to withdraw his plea, Rogers would appoint him new counsel from the Public Defender’s Office, he allegedly told his mother.
In the same call, McHenry said Rogers “would transfer his case to another judge if he liked,” according to the affidavit, and that “she had talked to everyone and that (Laramie County District) Judge (Thomas) Campbell would love to have McHenry in his courtroom and would see that McHenry was brought to justice.”
McHenry allegedly indicated to his mother that he believed this stemmed from a conflict between Rogers and Jerabek. He said Jerabek told him the judge filed an ethics complaint against him, but Jerabek had not been found to have violated ethics. McHenry said Jerabek told him a “board of ethics” was investigating Rogers in relation to speedy trial issues.
McHenry allegedly reiterated these points in later calls to his sister and a friend.
On Nov. 13, McHenry again spoke with his mother, this time about potentially withdrawing his plea. McHenry allegedly told his mother his plea agreement said he could not withdraw his plea. His mother responded: “The judge said you can,” to which McHenry said: “The judge said I can, very true.”
In a plea agreement signed Aug. 16 by McHenry, Jerabek and Manlove, McHenry agreed not to withdraw his plea once it was entered. Any attempt to do so would be a breach of the agreement, according to court documents.
Still, Rule 32(d) of the Wyoming Rules of Criminal Procedure says the court may allow withdrawal of a guilty or no-contest plea before sentencing “upon a showing by the defendant of any fair and just reason.”
“At any later time, a plea may be set aside only to correct manifest injustice,” the rule continues.
Manlove requested a transcript Monday of the closed hearing from Rose Terlesky, Rogers’ court reporter. Terlesky responded that the transcript had not yet been generated, but that Rogers had directed it be sealed, so she would not be able to provide Manlove with the transcript.
In August, McHenry pleaded no contest to voluntary manslaughter, attempted voluntary manslaughter, two counts of aggravated burglary with a deadly weapon and four counts of interference with a peace officer with injury, as part of a plea agreement.
On May 11, 2018, Laramie County Sheriff’s deputies responded to the 5000 block of South Greeley Highway after a man reported that his daughter had been shot in the hip. During a search of the area, a detective discovered the body of Joseph Steven Tortolito, 61, of Cheyenne hidden under several pallets.
Shortly after Tortolito’s body was found, a SWAT team made up of officers from the sheriff’s office and the Cheyenne Police Department saw a man, later identified as McHenry, running in and out of a nearby home holding a firearm, according to court documents. McHenry rummaged through two vehicles before getting into a third and starting it, backing it down the driveway until he was stopped by the SWAT team, where he surrendered without incident.
McHenry was later found to have broken into two homes while armed, having taken a firearm from one of the homes.
While being interviewed by law enforcement, McHenry was not cooperative, and at one point attempted to leave the interview room through the ceiling, according to court documents. He later injured a detective with a 3-foot piece of metal air duct.
After deputies attempted to restrain him, including with a Taser, McHenry tried to bite and kick them several times.
A pathologist confirmed during an autopsy on May 12, 2018, that Tortolito had died of multiple gunshot wounds, and his death was declared a homicide. The Wyoming State Crime Laboratory later found McHenry’s DNA on some of Tortolito’s clothing and several parts of the rifle, according to court documents.
McHenry originally faced first-degree murder and attempted murder charges in connection with the shootings.
Jerabek said at the time of McHenry’s plea that his client would enter no-contest pleas because McHenry was under the influence of methamphetamine when the incident occurred, and he would not be able to give a factual basis necessary to plead guilty.
In the plea agreement, the state and McHenry agreed to a maximum sentence of 14 to 20 years in prison, pending a sentencing hearing. The state dismissed an additional charge of misdemeanor property destruction.