Antonio Whitehorn did not have his scheduled preliminary hearing on Thursday.
Previous attempts have been rescheduled due to the state awaiting evidence or to meet the statutory obligation of having a court reporter present. The most recent delay stems from complications with a witness.
When the matter was called before the bench, Butler County Prosecutor Paul Osterreicher informed the judge that he needs more time to confer with his witness.
“The witness that I need to use for this matter indicated to me that, if she is called to testify, she will invoke her fifth amendment right on the stand,” Osterreicher explained. “So I need time to see about possibly making some kind of arrangement where she could feel more comfortable about testifying.”
If the witness were to invoke their fifth amendment rights during testimony, then information being sought by prosecution would not be presented in court.
Whitehorn is currently facing two counts of second-degree murder and one felony count of first-degree robbery stemming from a fatal incident that led to two deaths in January.
The purpose of the preliminary hearing is for the judge to hear evidence in support of the charges that were filed and then determine if the matter should be bound over to trial. The case cannot proceed without it.
Whitehorn’s defense attorney, Public Defender Sarah Bernard, filed a motion with the court on Wednesday objecting to Osterreicher’s request for recorded video deposition as witness testimony. In her objection, Bernard stated that such video deposition for testimony doesn’t fulfill the requirements of Whitehorn’s constitutional rights.
Her objection further goes on to explain that the defense has not had a chance to completely review information provided by the state through the discovery process, as much of it had only recently been made available, while some other evidence has not yet been provided. According to the motion filed with the court:
“Defendant requests the Court overrule state’s Motion for Application to Preserve Testimony of Witnesses by Video Deposition, as ordering Defendant to be present for depositions at this stage would violate Defendant’s rights to due process, confrontation and effective assistance of counsel guaranteed by the Fifth, Sixth and 14th Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution and for such other relief as the Court deems proper.”
Osterreicher formally requested on Thursday that the hearing be moved to the middle of June, during which time he hopes to complete the preliminary hearing. The motion was granted without objection and was moved to 1 p.m. June 13.