Aceto wants charges dismissed

Having found favor once with the Montana Supreme Court, Joseph Aceto is now asking the court to dismiss charges of attempted homicide and aggravated kidnapping against him. In the alternative, he wants transcripts of a victim who later died to be disallowed at his trial.

A jury convicted Aceto in January 2002 of attempting to kill Rocky Hoerner and Eileen Holmquist by shooting at them in Columbia Falls in May 2000. He was also convicted of abducting Holmquist at gunpoint and taking her into the wooded North Fork where he released her days later.

He was sentenced to 210 years in prison.

In November 2004, the Supreme Court ordered a new trial for Aceto, finding that his rights were violated at trial.

Aceto, 51, acted as his own attorney, with Public Defender Mark Sullivan appointed as "stand-by" counsel to assist him with legal matters. Aceto was questioning Holmquist, his former girlfriend, when he became angry that the prosecution's motions limiting his questioning were being upheld by District Judge Ted Lympus.

Aceto and Lympus argued, and Aceto ultimately exploded in profanity and hurled a file toward Lympus and Holmquist. Lympus had Aceto removed from the court and arranged for him to watch his trial on closed-circuit television from his jail cell. Sullivan, ordered to take over Aceto's defense, asked for a mistrial, saying he was unprepared to do that. He was given several hours to prepare Aceto's defense and the trial went on, leading to the convictions.

The Supreme Court ruled that Aceto should have been warned before he was removed, and he was denied the opportunity to participate in his defense from his jail cell.

A new trial was scheduled, first for July and then for Tuesday.

That has been postponed, because Aceto's new attorney, Glen Neier, has asked the Supreme Court to intervene again in the case.

After Aceto's conviction, Holmquist killed herself. The prosecution plans to use transcripts of her testimony from the first trial when Aceto is retried.

District Judge Kitty Curtis, who will preside over the new trial, earlier denied Neier's motions to dismiss the charges related to Holmquist and prohibit transcripts of her testimony.

Neier turned his efforts to the Supreme Court. In his motion to the court on Sept. 30, Neier said prosecutors have no evidence in the kidnapping and attempted murder charges related to Holmquist without her testimony.

And her recorded testimony should be inadmissible, Neier wrote, because Aceto's removal from the courtroom at trial prevented him from fully and fairly cross-examining her.

Deputy County Attorney Katie Schulz disputed Neier's assertions. Prosecutors still have Hoerner's testimony as an eyewitness to what happened to him and Holmquist. Also, a bystander saw Aceto usher Holmquist into his car and speed away. Law-enforcement officers who combed the woods, looking for Aceto and Holmquist, could also testify about that.

It is acceptable to use transcripts from a previous trial if a witness is unavailable, she argued.

Aceto had his chance to cross-examine Holmquist before he interrupted himself with his outburst, she said.

"Having been given the opportunity to question, and then intimidate, Ms Holmquist, it would indeed be unfair and potentially a miscarriage of justice, to reward his violent outburst during trial by granting his motion to exclude her testimony in its entirety," Schulz wrote.

Aceto's trial is expected to last 3 1/2 days.

He has a long criminal history, going back at least to the 1970s in several East Coast states.

He was the star witness in a series of high-profile bombing trials in New England and bank robbery trials in Maine in the 1970s and '80s.

His testimony reportedly led to convictions of those involved in the bombings of Central Maine Power Company's control center in Augusta, and in Massachusetts, of a National Guard truck at a Dorchester armory, an airliner at Logan International Airport and a Newburyport courthouse.

Aceto served fewer than two years in prison, then was placed in a federal witness protection program and given a new identity.

He was later given a 25-year sentence in 1984 for murdering an inmate at a prison in Arkansas. Authorities said the killing was drug related.