More wrangling delays sentencings in Nevada County pot caretaker murder case | TheUnion.com

More wrangling delays sentencings in Nevada County pot caretaker murder case

Daniel Devencenzi

Re-sentencing for two codefendants in a contentious homicide case that ended in a mistrial was delayed Friday after the prosecutor filed a motion to disqualify the presiding judge.

Assistant District Attorney Chris Walsh had previously filed a similar motion against Superior Court Judge Tom Anderson in reference to Finley Fultz, the principal defendant in the 2014 murder of Isaac Zafft. Fultz's codefendants, Daniel Devencenzi and Nathan Philbrook, had previously pleaded guilty to manslaughter in the Zafft case.

Fultz had been scheduled for a retrial, but that has been postponed because of Walsh's request for Anderson to be disqualified. No new date has been set.

Due to a change in state law, both Philbrook and Devencenzi are set to receive shortened sentences, because even though they participated in a robbery during which a person was killed, they can no longer be charged with murder.

Philbrook, who also had pleaded to attempted second-degree robbery, had already been sentenced and is currently serving a 23-year prison sentence.

Devencenzi was expected to receive 11 years, but had not yet been sentenced. That could be reduced to two to three years in jail, which would mean Devencenzi — who is dying of cancer — could be freed after his sentencing.

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But at Friday's hearing, Anderson said he could not take any action due to the motion to disqualify him.

Devencenzi's attorney, Ken Tribby, said his client was too ill to even fill out a new plea form.

"He's had enough," Tribby said, "I want him released."

The defense attorney accused Walsh of being deceptive at Devencenzi's expense.

"He's talking with a forked tongue," Tribby said, before adding, "My client's life is at stake," and asking for a different judge to preside over the hearing.

Walsh took exception, telling Anderson, "I have been honest and candid with counsel."

According to Walsh, he needed to file the disqualification motion in reference to Devencenzi and Philbrook — even though they had already entered plea agreements — in large part because Anderson's handling of their cases continues to affect the pending case against Fultz.

Part of the reason Anderson granted the mistrial in Fultz's case revolves around a claim by defense attorney Greg Klein that prosecutors should have disclosed that Philbrook and Devencenzi had to enter their pleas together. Without knowing that during trial, Klein said, he couldn't properly question witnesses.

According to Walsh, no such package deal existed when the two men entered guilty pleas.

Walsh said that since the mistrial in early October, he has sought a "conditional exam" of Devencenzi that would clear up that issue. A conditional exam is intended to preserve testimony from a witness who is dying, he explained, adding that Anderson has dragged his feet for weeks on allowing that examination to take place.

"I felt that tied in with his bias," Walsh said. "He is hurting our ability to prove our case against Fultz … I want that excuse (about the package deal) to go away."

After taking a break to consider the matter, Anderson informed the parties that there would be no hearing in light of the pending challenge and noted no formal pleadings had been made in the other issues that had been raised.

"I'm currently looking at options to secure my client's release," Tribby said, declining to be more specific.

Contact reporter Liz Kellar at 530-477-4236 or by email at lizk@theunion.com.

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