Three defendants facing federal offenses linked to the slaying of a Northeast Kingdom man more than a year ago are raising concerns that prosecutors are taking too long to figure out if they will seek charges that will carry the possibility of the death penalty.
Neither John Welch nor Shawn Whitcomb and his daughter Krystal Whitcomb have been charged directly in the shooting death of 37-year-old Michael Pimental whose body was found Oct. 14, 2018, off the side of a dirt road in Concord, about 15 miles from his home in Waterford.
They were jailed on firearms and drug charges, though federal prosecutors have said during hearings and in court filings that each may have played a role in Pimental’s killing.
Federal prosecutors have also said they were weighing whether to pursue charges against each of them that carry the possibility of the death penalty.
Now, the attorneys for the defendants say the lack of action by prosecutors is affecting other cases against them.
They contend that if the cases on firearms and drug charges are allowed to proceed and they are convicted, that conviction could be used against them as an aggravating factor when, and if, a jury is asked to consider whether to impose a death sentence on charges directly tied Pimental’s death.
“A superseding indictment containing a capital-eligible offense would greatly impact Krystal Whitcomb’s strategic choices as to which pre-trial motions to file,” Michael Straub, an attorney for her, wrote in a recent filing.
“Given the nature of various statements made by Krystal Whitcomb,” Straub added, “the question of whether to seek suppression of certain of her statements might well be influenced by the impact that those statements would have on a ‘garden variety’ drug conspiracy trial versus a death-penalty trial.”
Straub wrote that prosecutors have had plenty of time to investigate the case.
“It is not unreasonable to ask the Government at this stage of the investigation to make a decision,” the attorney wrote. “Mr. Pimental was murdered on October 13, 2018. The Government has had a year and a half to investigate.”
Straub could not be reached Monday for comment.
The attorneys for Welch and Shawn Whitcomb raised similar concerns.
Assistant U.S. Attorney Wendy Fuller, a prosecutor in the cases, submitted a filing that stated a decision on whether to indict a person “lies solely within the province of the U.S. Attorney’s Office” and the U.S. Department of Justice.
“At any time, the government may open or close an investigation, and file charges or dismiss them,” Fuller added. “The defense has no involvement in those decisions and the Court should view the defense’s request for exactly what it is: an attempt exert pressure over an ongoing criminal investigation.”
Judge Christina Reiss, in an order late last week, set a deadline of March 31 for the defendants to file pretrial motions in the current cases against them.
“If the government decides to pursue the death penalty as a potential penalty, Defendants may petition to have the pretrial motions period re-opened and that motion shall be granted,” Reiss wrote.
“Defendants,” the judge added, “have not persuasively argued that any pretrial motions pertaining to the present Indictment must be postponed until that determination is made.”
Welch was charged last June after authorities say he was spotted trying to dig up in a field the handgun that fired bullets “consistent” with the ones recovered in Pimental’s killing.
Welch is charged with being an unlawful user of a controlled substance knowingly in possession of a firearm and conspiring to distribute cocaine.
According to court and state records, Pimental was shot multiple times in the head and torso.
Pimental’s girlfriend, Krystal Whitcomb, and her father, Shawn Whitcomb, were charged with federal firearms and drug charges shortly after Pimental’s body was located in October 2018.
At the time of his death, according to court records, Pimental and the Whitcombs were under investigation by the Vermont Drug Task Force for allegedly dealing large quantities of heroin and fentanyl.
U.S. Attorney for Vermont Christina Nolan and Fuller, the assistant U.S. attorney prosecuting the case, through a spokesperson declined comment Monday.
