Lance Jasper filed the lengthy motion to dismiss Wednesday morning in Missoula Municipal Court, arguing a lone misdemeanor count of obstructing a peace officer should be thrown out because the video recording could have worked to Peschel's advantage at trial.
The police department's inability to produce the video, Jasper argues, is a violation of Peschel's right to due process.
Deputy Missoula City Attorney Andrew Scott will formally respond to the motion next week, but said the video footage did not “mysteriously disappear,” as Jasper writes in his brief.
According to Scott, the police department began using new dash-mounted digital video systems in late July or early August. The video camera used in Peschel's case was one of about 25 that malfunctioned, he said.
“They weren't written over, they weren't erased, they just disappeared,” Scott said.
Officials recently sent the videos to a computer expert, who retrieved about four minutes of footage that was unrelated to Peschel's case.
“We've done all we can do,” Scott said.
Peschel, 66, was hospitalized for three days after the Aug. 18 confrontation on Greenough Drive, where reports of a suicidal woman armed with a gun drew a heavy police presence.
Peschel lived in the same condominium complex as the woman and dealt with mental illness during his 35-year career as a doctor. He says officers were overzealous and rough when he was only trying to assist the woman.
Police say Peschel was profane, made a dangerous situation more dangerous, refused to follow orders and eventually fought with them as they tried to arrest him.
One officer eventually tackled Peschel, he said, and put a forceful knee in his back, bruising his lung and requiring the hospital visit.
Julie Ann Huguet, the 49-year-old woman at the center of the dispute, killed herself after being released from medical treatment. She was hospitalized after the incident, but after being released from treatment, became suicidal again.
Missoula Police Capt. Dick Lewis said officers were responding to a delicate situation involving a woman who had taken a large amount of prescription drugs and had a gun. He said officers were simply trying to get Peschel out of the danger zone.
“We needed to have control of the environment and he was making that impossible by screaming profanities and hollering,” Lewis told the Missoulian after the encounter.
Peschel eventually wound up in the back of a police car in handcuffs and was charged with a misdemeanor for allegedly interfering with police. Peschel told officers he thought he needed to go to a hospital, but he was jailed instead.
Eventually he went to the hospital, where doctors found he had a bruised lung and chest. He spent the next several days on painkillers and oxygen.
In his motion, Jasper says officials have not met his requests for an interview with Officer Jason Huntsinger, who served as the incident commander during Peschel's arrest.
“Given his central role in the charges pending against Dr. Peschel, the defense respectfully requests that the court compel Officer Huntsinger to sit for an interview, as all of the other responding Missoula City Police officers have done to date,” Jasper wrote.
However, according to the motion, “the city revealed that Huntsinger is currently suspended from the Missoula City Police Department and is not allowed to enter the Missoula City Police Department building.”
According to Scott, Huntsinger will not be called as a material witness in the case, and the prosecutor has no way of contacting him.
“He's on administrative leave. I have no access to him,” he said. “I'm going to match each and every one of their points with the other side.”
The motion goes on to request access to a report detailing an internal investigation by the police department, and to an automated log that records the date and time a Taser is discharged. Those logs show that a Taser assigned to Officer Craig Serba, who arrested Peschel, was discharged at approximately the same time as Peschel's arrest.
Scott said the internal clock on Serba's Taser had been reset due to a malfunction, and was actually discharged about two hours after Peschel's arrest. Scott said officials with the Taser manufacturing company confirmed this.
The officer performing the internal investigation “checked with the Taser company and verified that the discharge was nowhere near the time that Serba was arresting Peschel,” Scott said.
The investigative report, written by Lt. Chris Odlin, has not been finalized and Scott has not seen it, he said.
“They are trying to turn this into the trial of the Missoula Police Department instead of the trial of Walter Peschel,” he said. “The case is very specific: Did he obstruct the police? It doesn't matter whether they were acting illegally when they gave the order, the citizen is required to obey.”
According to the Montana Code Annotated, “It is no defense to a prosecution ... that the peace officer was acting in an illegal manner, provided that the peace officer was acting under the peace officer's official authority.”
In the event Peschel is found guilty at trial, scheduled to begin Jan. 8, it is Scott's intent to request a deferred imposition of sentence and a fine of $250 with a $101 surcharge.
The charge of obstructing a police officer carries a maximum punishment of six months in the county jail and a $500 fine.
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.
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