Argument over subpoena reveals a hint of defense strategy in Mollie Tibbetts case


The trial of Cristhian Bahena Rivera for the murder of Mollie Tibbetts was supposed to start last week after years of delay, some of it necessitated by the coronavirus. But back in December there was another delay and the trial still hasn’t started. However, this week there was an argument in court over attempts by the defense to subpoena Tibbetts bank records. Prosecutors argued those attempts were an illegal “fishing expedition” because the court didn’t approve them and the subpoena was not entered into a tracking system until days later:

Prosecutors say the defense issued the subpoena through the Poweshiek County Clerk on January 15, six days before they received a copy. A return of service was date-stamped four days later by the Polk County Sheriff’s Office.

The State says the defense didn’t notify the prosecution or get approval from the court for the subpoena, which is for Mollie Tibbett’s bank records at Bankers Trust in Des Moines.

“Prior to the service of the subpoena the defense did not file the subpoenas in EDMS which would suggest that the intent of the defense was to keep the existence of the subpoena from the State and Court. The timing of the email to the undersigned with the subpoena attached would further support this contention. On its face, the subpoena appears to be a fishing expedition into the confidential banking records of Mollie Tibbetts who is not a witness or party and is the person the defendant is charged with killing.”

Thursday the defense attorneys claimed this was all just a “clerical oversight.” This oversight might have become a problem for the defense except it turned out the bank in question didn’t have any records on Tibbett so nothing was returned:

Defense attorney Jennifer Frese countered, during a Thursday video hearing, that her office had not notified prosecutors of the subpoena — as required by law — because of a “clerical oversight” and not because the defense was “trying to be tricky.”…

Frese didn’t explain the effort to find Tibbetts’ banking records during the hearing but in her written argument said she and her husband/co-counsel were following up on an investigation started by the state into Tibbetts’ bank records. A tip was made to law enforcement Aug. 1, 2018, from a bank employee that Tibbetts had set up a bank account just before her death.

There also was information a transaction was made on the account at a tattoo shop after her death, according to the motion.

Frese said she couldn’t go into more detail about why the defense wanted the records without revealing her defense strategy.

The killing of Tibbetts took place on July 18, 2018 and about a month later they identified a truck seen following Tibbetts while she was out jogging. The distinctive truck was connected to Cristhian Rivera. When police confronted him he confessed to following Tibbetts in his truck. He claimed he then blacked out but later came out of his fog and found Tibbetts body and placed it in a cornfield. He led police to the body and the coroner later concluded she’d been stabbed to death.

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It all seemed pretty open and shut at the time but Rivera pleaded not guilty to first degree murder in September of 2018. At the time, other defense attorneys who were not involved in the case suggested the claim of a black out could be used to make a “diminished responsibility” defense.

In November 2019 there was a big update to the case when police admitted that when he was initially questioned on August 20, 2018 he was not read a full version of his Miranda rights. It was only after he led police to her body the next morning that he was read his rights in full by an officer who spoke Spanish. At the time, the trial was set for February 2020. The pandemic interceded and the trial was delayed for more than a year.

Whether or not your believe her story about this being a clerical error, you can maybe see where this attempt to get Tibbetts’ bank records was going. It’s probably not enough for the defense to raise procedural issues about Rivera’s guilt in this case. What would help is some evidence, however weak, that maybe someone else was responsible. So if they could find evidence that someone accessed her account to get a tattoo after her death, that might help point in a direction other than their client.

Of course the police received hundreds of tips during this investigation. There was a tip that Tibbetts had been seen a truck stop, for instance. That turned out to be false. The tip about the bank account and the tattoo are also likely false. But the defense has to offer the jury something and this appears to have been one late (and failed) attempt to do that.

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