The trial for two brothers charged with sexual assault that was scheduled to begin next week has been canceled.
At a hearing Wednesday afternoon at the Kenai Courthouse, Superior Court Judge Carl Bauman said he also would likely dismiss the indictments “without prejudice,” meaning the district attorney’s office could seek new indictments from a Kenai grand jury.
Prosecution and defense attorneys also said they are working on a plea agreement and may have a resolution by next week.
Bauman had set a date of Aug. 4 in Homer for the jury trial of Anthony Resetarits, 22, and Joseph Resetarits, 19.
In charging documents, Alaska State Troopers allege the two sexually assaulted a teenage boy with an object at a September 2012 East End Road drinking party. They pleaded not guilty at an October 2012 arraignment and have since been out on bail. A boy then age 16 also was charged with second-degree sexual assault and referred to the Office of Juvenile Justice.
From 60 to 80 teenagers and adults were at the 2012 party, including members of Homer High School sports teams. Joseph Resetarits was then a member of the Mariners football team, but was taken off the team after the charges were filed.
At a scheduled hearing routinely held in advance of a pending trial, Bauman met with Kenai District Attorney Scot Leaders and defense lawyers Philip Weidner and Michael Moberly to discuss the status of the case. Bauman canceled next week’s trial date and set a status hearing for 2 p.m. Aug. 6 at the Kenai Courthouse.
Representing the victim, attorney Kathy Hansen of the Office of Victims’ Rights also attended the hearing. She declined to comment on the case pending Bauman’s final decision.
At the hearing, Bauman said he had been considering motions filed by Weidner, representing Anthony Resetarits, and Moberly, representing Joseph Resetarits, to dismiss the indictments against their clients. Weidner filed a motion in April requesting relief due to alleged violations of constitutional rights and of Alaska criminal rules of procedure.
“Frankly, I want to let the district attorney’s office know that I’m leaning in the direction of granting that motion to dismiss the indictment without prejudice,” Bauman said to Kenai District Attorney Scot Leaders. “I guess the bad news, Mr. Leaders, is I’m giving you that heads up.”
Bauman said he and a law clerk have been writing a decision and would release it next week at the status hearing.
“Without prejudice” means that the district attorney’s office can bring the case back to a grand jury and seek another indictment. The judge made that point clear.
“The key words here are ‘without prejudice,’” he said. “It’s not unusual for a particular indictment to be dismissed only to be re-indicted to cure the perceived concerns.”
At the hearing, Weidner said he had been talking to Leaders about “a potential rule 11 resolution,” that is, a plea agreement. Weidner said he had talked to Leaders about a 30-day stay of proceedings while they worked out a deal.
“I think it would be helpful for all parties, and particularly the state of Alaska, to see your honor’s decision on dismissing the indictment because that would be part of the equation on meaningful rule 11 negotiations,” Weidner said.
Moberly said he had not talked to Leaders about a plea agreement, but was aware of Weidner’s discussions with the district attorney. He said the court’s decision on the motion to dismiss the indictments might help the parties “better evaluate their ability to rehabilitate the case.”
Leaders suggested to Bauman that they hold off on the case until next week’s status hearing while the state works with the defense on a possible plea agreement. He said he didn’t know to what extent a dismissal of the indictment would alter the position of the state regarding negotiations with the defense.
“We may even accomplish some of those negotiations within a week,” Leaders said.
Weidner, Moberly and Leaders did not return phone and email messages requesting comment on the July 30 hearing.