"Where does my client go to get his reputation back?" asked attorney Patrick Duffy after Pennington County State's Attorney Glen Brenner dismissed criminal charges Wednesday against former garbage haulers George and Clifford Fish on the third day of a trial expected to last several days.
"The evidence came in quite different than we anticipated and we predicted," Brenner told Circuit Judge Thomas Trimble. Brenner sat between the attorneys prosecuting the case -- deputy state's attorney Patrick Grode and assistant South Dakota attorney general Rod Oswald.
"I don't feel like we're left with an opportunity to prove it because of the management of the landfill ... because of the sloppy negligent management of the landfill. It's made our job impossible at this point. I used to say difficult, now I'm saying impossible. And that lies in the hands of the supervisors of that facility at the time," Brenner said.
"This was not the case I expected to hear," Sioux Falls attorney Michael Butler, said after the case was dismissed. Butler and John Murphy of Rapid City represented George Fish. Murphy previously represented the Fish company in the criminal case against it that was also dismissed. Duffy, and Jeff Fransen, represented Clifford Fish.
"It became evident early on in the trial that this was not a criminal case," Butler said.
Butler praised the prosecutors' decision to step back from the case.
Brenner, Grode and Oswald acted in the best tradition of those who prosecute cases and did the right thing by dismissing the case against the Fishes, Butler said.
Butler, however, refused to overlook the harm he said the prosecution of this case has done to his client.
"You can't give George Fish back what he lost," Butler said. "This dismissal doesn't give back his business, but it does redeem a wonderful man's reputation and that's priceless."
Clifford Fish's lead attorney, Patrick Duffy, was not quite as confident that the Fishes are restored by the disappearance of the criminal charges.
The dismissal was an emotional moment for 74-year-old George Fish and his son, Clifford, 49, who shared hugs and congratulations with their wives and the defense teams.
The men were charged with grand theft and conspiracy to commit grand theft for supposedly lying about the contents of Fish garbage trucks that were allowed to dump without charge at the landfill. The conspiracy allegedly involved both Fish men, truck drivers and a landfill scale attendant.
Former landfill attendant Randall Meidinger had waited all day to testify, but only reached the courtroom to hear Brenner dismiss the case. A jury acquitted Meidinger of conspiracy and grand theft charges in May.
Prosecutors dropped charges against former Fish truck drivers Harold Steen, Steven Pope and Matthew Gibson in July. Gibson was sitting in the hallway, presumably waiting to testify yesterday afternoon.
Brenner came to the courtroom to dismiss the charges after an hour-long break in the trial. Prosecuting and defense attorney's met with Trimble in his chambers prior to Brenner's announcement.
Brenner dismissed the charges with prejudice, which means the Fishes cannot be charged with the same crime again. The decision, however, has no impact on the City of Rapid City's civil case against the Fishes and Meidinger, Brenner said.
Brenner later pointed to the management of the landfill for the failure of the state's case.
"I believe that this occurred and still have a good faith belief that it did," Brenner said.
Most of Wednesday's testimony centered on records confiscated from Fish Garbage Service that were cross-referenced with landfill records to isolate loads of alternative cover, a product accepted for free at the landfill, that did not come from the Merillat Particleboard Plant and Riss & Associates. Fish had a contract to haul waste from both plants. One of those waste products was sawdust.
Landfill supervisor John Leahy was called back to the stand to explain the results of a state audit of the two sets of documents.
Duffy took considerable time with Leahy Wednesday asking him if he could verify specifically what happened with any of the suspect landfill transactions.
Leahy repeatedly answered "No."
"This is a complete vindication for my client and the entire Fish family and their employees," Fransen said after the dismissal. "We have always maintained Cliff's innocence. I am so happy for him."
Leahy's testimony and Tuesday's testimony from former solid waste superintendent Jerry Wright was not what prosecutors expected, Brenner said.
Although Brenner has not spent much time in the courtroom with this case since the first indictments were handed down more than a year ago, he has been briefed on the trial and testimony.
"What we know occurred and what we can prove occurred are often times two different things," Brenner said.
Grode and Oswald have handled the prosecution of the case since the spring of 2010 when Mayor Allan Hanks requested the assistance of the attorney general's office with the case.
Brenner said that while it is disappointing to drop the case, he believes it has lead to improvements at the landfill.
"I'm comfortable that there is no fraud currently going on there," Brenner said. "At least that's something."
Contact Andrea Cook at 394-8423 or firstname.lastname@example.org.