Dustin McCowan’s murder trial—already continued once—will not begin as scheduled on Aug. 13.

And when it does begin, McCowan’s attorney, John Vouga, is hoping that it will be held somewhere outside Porter County.

At a pre-trial conference today, Porter Superior Court Judge Bill Alexa vacated the Aug. 13 trial date, after Vouga and co-counsel Nick Barnes repeated their contention—made in June at an earlier hearing—that they won’t have sufficient time, over the next month, properly to depose the 148 witnesses whom the state could call to testify at trial.

Alexa then set a hearing for 9 a.m. Thursday, Aug. 16, at which Vouga and Barnes will argue five motions, among them a motion for change of venue.

Alexa plainly evinced frustration this morning, when Barnes opened the proceeding by filing the five defense motions, the most immediately important of which was one to continue the trial.

“You didn’t take me seriously when I told you in June that I want this trial to start in August,” Alexa said.

“We did take that seriously,” Barnes replied.

“Not very,” Alexa shot back.

“We’re not just a couple of pretty faces sitting here,” Barnes insisted. “We’re working our butts off.”

In fact, Vouga said, the defense would like to know how many and which of the 148 persons on its witness list the state really intends to call to testify. “Are they going to call all 148? Are they going to winnow it down? Otherwise, we would have to depose all of them. And that would put it into a two-month trial.”

Alexa accordingly put that question to Deputy Prosecuting Attorney Cheryl Polarek: how many witnesses does the state plan on calling?

“It’s too soon to say,” Polarek responded. “There are still decisions to be made. We probably won’t call all of them. But it’s prudent to put them all down.”

“But (Vouga) has a right to know whom to depose,” Alexa insisted. “You want to surprise him.”

“No, I don’t want to surprise him,” Polarek responded.

Would November be enough time to depose all the witnesses? Alexa asked Vouga.

Vouga said that it likely would be. “I know it’s frustrating. Dustin’s still in jail. But we need an aggressive defense and we have every intention of providing one.”

At that point Alexa simply vacated the Aug. 13 date and will consider a new one at the Aug. 16 hearing.

“We will try the case if we have to in August but in a case of this magnitude the judge is aware it’s important to give the defendant a fair trial,” Vouga told the Chesterton Tribune after this morning’s conference. “And we laud the judge for that.”

Meanwhile, Vouga and Barnes detailed for the Tribune the five motions which they will argue on Aug. 16:

•A motion to continue.

•A motion to change the venue of the trial to an unspecified location but somewhere outside Porter County.

•A motion to suppress dog-tracking evidence. At McCowan’s bond hearing in November 2011, Det. Com. Jeff Biggs of the Porter County Sheriff’s Police testified that, on an unspecified day after McCowan’s arrest on Sept. 24, 2011, a bloodhound tracked victim Amanda Bach’s scent from the property line of McCowan’s home in Union Township to her final resting place, south of the Canadian National railroad right-of-way approximately 300 yards from the McCowan residence. The bloodhound also tracked McCowan’s scent from that resting place to Dean’s General Store on Ind. 130, where Bach’s vehicle was found abandoned, Biggs testified.

•A motion to produce 19 police supplemental reports related to the investigation which Barnes said the state did not make available to defense during discovery. When asked how Barnes knew that there were documents missing, he said that documents which the state did provide to the defense are numbered sequentially and that there are gaps in the sequence. Barnes said that he has no idea what the contents of those 19 documents are.

•A motion to return family property—chiefly firearms—seized during the execution of a search warrant at the McCowan residence.

Also today, Vouga and Barnes filed their own list of witnesses—four of them—expected to testify at trial: McCowan’s parents and two experts, one on cell phone technology, the other on forensic entomology.

Vouga declined to comment on the significance to his case of either expert.

But at the November bond hearing, Biggs testified that GPS locates of McCowan’s cell phone activity in the early morning hours of Friday, Sept. 16—when Bach went missing—put his phone in three places linked to the case: around 1:30 a.m., near Bach’s final resting place; around 2:30 a.m., on the road between his home on C.R. 625W and Dean’s General Store on Ind. 130; and around 3 a.m. at Dean’s General Store, 23 minutes before Bach’s abandoned vehicle was found.

A forensic entomologist, on the other hand, presumably would testify on insect activity present on the body when discovered. That activity—the specific species of insects found on a body and the phases of their life cycles when found—is sometimes used to estimate time of death. Investigators have never publicly released their own estimate of the time of Bach’s death.

McCowan is accused of shooting Bach to death sometime in the morning of Friday, Sept. 16, 2011. Bach’s body was found in the afternoon of Saturday, Sept. 17, 2011, some 36 hours after she went missing.

McCowan told investigators that Bach had been visiting him and left his home around 1:30 a.m. Friday, Sept. 16. Her abandoned vehicle was discovered with a flat tire at Dean’s General Store on Ind. 130 around 3:23 a.m.

An autopsy determined that Bach had been killed by a single gunshot wound to the throat.

Posted 7/13/2012