The thorny legal problem of what constitutes indigency has held up proceedings in the case of Kenneth Botham Jr. for another four days.
County Judge Harold Moss, who was to set a date for the preliminary hearing Monday, refused to do so because the 27-year-old Botham has not yet hired counsel.
Instead, he postponed to Friday a court appearance at which a preliminary hearing date will be set and reiterated that Botham must make “a good faith effort” to get his own lawyer.
A preliminary hearing is a display of some of the evidence by the prosecution, to establish that sufficient probable cause exists to hold a man for the crime of which he has been accused. Botham is charged with four pre-meditated murders – those of his wife, Mrs. Linda Miracle and the two Miracle children.
Judge Moss’ feelings are at odds with those of Public Defender Bob Emerson, who was with Botham at his Monday appearance, even though the judge noted he had not been assigned to the case.
Emerson, who has taken the position that Botham, a vice president of Tri Star Corp., is partially indigent, noted that his position is that any defendant is entitled to counsel at any stage of the proceedings. He also said that Botham has indicated he will turn his assets over to the court to pay partially for the costs of the case.
And, Emerson argued: “What’s indigent in traffic cases and first degree murder are two different things.”
Emerson also noted that he and Botham together have contacted eight lawyers, and claimed this is the “good faith effort” sought by the judge.
Dist. Atty. Terrance Farina said: “I have no objection to the public defender’s office…I haven’t investigated. But I would not want to see the public defender in if the defendant is not indigent.”
Farina noted that he had seen a statement of $5,000 worth of assets and understands there are substantial payments made by Botham into a stock purchase in his company.
County Judge Harold Moss, who has maintained throughout the series of early hearings that Botham appears to have means to hire his own lawyer, said: “I cannot see any reason for changing my finding at the present time…I haven’t seen anything that would change the court’s view…He is the vice president with a substantial company. The court is not about to assign an attorney until I inquire into the background of his financial status.”
Judge Moss also noted that the public defender is not assigned to the case and said that the Botham offer to give his assets to the court was the first time he had heard the suggestion.
Judge Moss objected to Emerson’s contact with various lawyers on behalf of the defendant. Emerson replied that, until last Thursday, Botham had not been allowed but one phone call, which he had placed to a lawyer the day he was arrested. That lawyer declined to take the case, although he represented him at his first court appearance.
Since that time, Botham has been allowed phone calls but no long distance calls, and Emerson said three of the lawyers he contacted were outside of Mesa County.
“My position is that I would accept an appointment to represent Botham until the matter is finally determined,” Emerson said. “If the court orders me out of the case, I’ll leave.” Judge Moss indicated that, at this point, Emerson is not representing Botham.