The Journal Gazette
Friday, January 25, 2019 1:00 am

Murder trial delay OK'd over evidence

Prosecutor slow to deliver all of it: Defense attorney

MATTHEW LEBLANC | The Journal Gazette

The trial of a Fort Wayne man accused of killing a 5-year-old boy last year was postponed Thursday, after his lawyer filed a motion asking a judge to consider throwing out the case.

Daniel T. Pope, 29, had been scheduled to stand trial Monday. He is charged with murder and aggravated battery in the death of Benjamyn Otto McKinley Frederick in March.

Defense attorney William Lebrato had claimed in court documents prosecutors were slow to deliver evidence that could be used at trial. He said in a nine-page filing he was ready to go to trial next week but learned Tuesday of new evidence – crime scene sketches, photos and video from a police detective's cellphone and other items Lebrato had not been able to review – that had not been provided as part of discovery, a process in which lawyers on both sides share evidence before trial.

Lebrato also could not access electronic documents sent by prosecutors, he wrote.

Prosecutors are required to turn over information they have to defense attorneys before trial.

A motion filed by Lebrato asked Allen Superior Court Judge Fran Gull to consider dismissing the case, excluding the newly discovered material or setting aside the testimony of witnesses who might address it at trial.

The request was withdrawn, and Gull agreed to postpone Pope's trial – an option that also was listed in the motion. A hearing is scheduled Feb. 7 to set a new trial date.

Pope was charged with murder in Benjamyn's death, after the boy's mother found her son on the bathroom floor. He was warm to the touch but his lips were blue, police said.

Benjamyn appeared to have been “severely beaten and has numerous defensive wounds in addition to his brutal wounds on his chest wall and all up and down his left side and on his genitalia,” a trauma surgeon told investigators.

He died March 8 after being taken to the hospital.

Pope has a child in common with the boy's mother, a probable cause affidavit states, but it is unclear if that child is Benjamyn. He had abused the boy and the mother in the past, the affidavit alleges.

The aggravated battery charge was added this month.

In 2016, Gull dismissed a felony battery case after finding the Allen County prosecutor's office acted with gross negligence when it failed to quickly turn over video from an in-car police camera a defense attorney had requested months earlier.

Allen County Prosecutor Karen Richards called the concerns raised by Lebrato “a miscommunication” and said the issues were resolved Thursday. Lebrato did not return a message from The Journal Gazette.

Gull said the motion to dismiss will be struck from the court's official record.

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