Judge denies Reed Bender's motion to dismiss case stemming from school board mask incident
Aug. 19—A Mitchell man who was charged with obstructing a law officer roughly a year ago after refusing to wear a mask during a Mitchell Board of Education meeting had his motion to dismiss the case denied Thursday during a hearing.
Reed Bender, 39, of Mitchell, was seeking to have the case dismissed based on what his attorney argued was the court failing to comply with the 180-day rule for a speedy trial after the initial appearance in front of a judge. In addition, Bender sought a motion for the judge to put sanctions on the trial due to what his attorney R. Shawn Tornow said was based on discovery items that were "not timely provided," which he alleges was "prejudice" toward Bender.
At the Sept. 14 school board meeting at Mitchell High School, two Mitchell Police Division officers led Bender out of the meeting after a confrontation with Bender for not wearing a mask, but did not arrest him that night. Bender was charged with a misdemeanor of obstructing law enforcement, but pleaded not guilty to the charge on Jan. 7.
During Thursday's motion hearing, Tornow argued that the state failed to provide him with the discovery items related to the case within the July 16 deadline, along with the court not complying with the 180-day timeline for a speedy trial.
"The discovery was sought out prior to the deadline, was produced to the state prior to the deadline, and for some reason wasn't produced to my office until a week later," Tornow said. "The deadline was July 16... The information didn't come to my office until after the deadline. Because this wasn't wasn't produced on time as it should have been, and that leads or assists in leading to the state suggesting the trial be postponed, we think that's prejudice against the defense."
Bender was not charged for refusing to wear a mask but for what prosecutors allege as "using or threatening to use violence, force or physical interference or obstacle, intentionally obstruct, impair or hinder the enforcement of the criminal laws or the preservation of the peace by law enforcement officers," according to court documents.
In response to the discovery items in the case arriving to Tornow later than the deadline, State's Attorney Jim Miskimins pointed to his "extremely busy" calendar as a reason that could have caused any delay in providing the defense discovery items.
"If there was a delay, it was because my calendar, both professionally and otherwise, was extremely busy," Miskimins said.
Judge Donna Bucher denied both motions made by Bender, noting she did not see any prejudice toward Bender in the delay of the discovery items.
"I do not see that there is any prejudice to the defendant based on this seven-day delay in getting the information that I required to be turned over on the discovery," Bucher said. "Seems to me that I was making decisions on criminal records being turned over and looking at things on camera during that time frame, and I haven't seen that there is any actual prejudice."
On Bender's motion of the court failing to begin a trial within the 180-day speedy trial time frame, Judge Bucher contested that there was "no formal demand" for a trial within 180 days. Bucher also pointed to the recent Supreme Court ruling that stated "180 days did not apply" due to the pandemic.
"There was no formal demand for a hearing or trial within 180 days," Bucher said. "During part of this time, there was a Supreme Court ruling that 180 days did not apply because of the pandemic. Then there was an agreement that the trial that was scheduled couldn't go forward because I didn't have a court reporter."
While Tornow said he was aware of the supreme court ruling, he said it wasn't clear if that Supreme Court ruling would stop taking effect at the end of 2020, which is a month before Bender's initial appearance on Jan. 7, 2021.
"At no point did the defense offer or suggest to delay the trial," Tornow said.
Tornow also argued that the Mitchell School District's policy outlining the mask measures was not "always on the internet."
"We had people follow up back in January, February and March time frame, and it was not available on the internet," he said.
In closing, Bucher pointed to the lack of formal complaints by Bender's defense team for the trial date taking place past the 180-day mark as another reason she denied the motion.
"There was a demand for a jury trial. I don't think anybody has been dragging their feet. There are things that are outside of everyone's control on this issue," Bucher said. "I believe there are dates to be excluded for the 180 days, and I believe there was acquiescence on the side of the defendant for the trial date to be continued, and there was no complaint."
A trial date was set for Bender during Thursday's hearing, which will begin on Oct. 18 in Mitchell.
