OSSIPEE — Following an emergency hearing Wednesday, Judge Pamela Albee will decide whether the mobile home and a storage container owned by the Gorham man accused of kidnapping Abigail Hernandez should be moved to protect them, as the state wants, or left on site — where the defense maintains the structures have value as important evidence.
While saying she hoped to issue a decision “as quickly as possible,” Albee gave the defense team representing Nathaniel E. Kibby, 34, a brief victory when she also stayed a condition of a previous search warrant that would have let the state remove items from Kibby’s mobile home at 4 Brookside Drive in the Gateway Trailer Park off Route 2. That includes the 20-year-old home and a container located a short distance from the dwelling.
Associate Attorney General Jane Young told Albee that the state was ready to relocate both the mobile home and container by the end of this week or early next week, to a secure, unnamed place where both would be protected from the elements and curiosity-seekers, while remaining available to Kibby and his public defenders, Jesse Friedman and Allison Schwartz.
Friedman, who with Schwartz filed the motion for the evidentiary hearing that was held in Ossipee District Court, said that what Young was proposing — the ability to exactly reconstruct a place and all its detail in another place — “would be akin to a Hollywood movie; this is real life.”
Young earlier said investigators had extensively photographed, videotaped and diagrammed the Kibby property, adding that with that documentation and the ability to inspect the mobile home and storage container off the present site, the defense should be able to prepare for trial.
In the state’s first public reference to the storage container, Young confirmed the unit was divided into three areas. Although she did not say what the areas were, Young told Albee that the third area had been discussed in documents that Albee had in her possession.
Hernandez disappeared as she walked home from Kennett High School, where she was a freshman, on Oct. 9, 2013. She returned home on July 20. On July 28, authorities arrested Kibby at his home without incident on a charge of Class B felony kidnapping.
No Abby or family
Neither Hernandez, nor her mother, Zenya, nor any friends of the family attended Wednesday’s hearing. That was in sharp contrast to July 29, when they sat in the front row, directly behind Young, for Kibby’s arraignment before Albee in Conway District Court. Kibby is being held on $1 million cash-only bond at the Carroll County Jail pending an Aug. 12 probable-cause hearing.
While Young on Wednesday did not say anything else about the storage container, she was adamant that “the placement of the trailer and the mobile home are not exculpatory,” which directly contradicted Friedman’s opening assertion that “the evidence in this case is the scene.”
The defense, said Friedman, has to be able to take its own photos, videos and make its own diagrams of Kibby’s home and the storage container and so the mobile home and storage container must remain where they are.
Albee addressed Kibby directly and asked whether his mobile home could withstand the stress of being moved, and Kibby shook his head vigorously from side to side to indicate it could not. Young said her office had been in contact with the hauler who originally placed the mobile home that Kibby later purchased at the Gateway Trailer Park and he had assured her that it could be moved without problems.
Young also noted that the mobile home and storage container faced an uncertain future because Kibby did not own the land on which they sit. It was likely, said Young, that Kibby would not be able to pay August’s rent on the land to the trailer park, which after several months of non-payment, could undertake its own efforts to remove his mobile home and also the storage container.
When Albee asked whether the state could erect a chain-link fence around Kibby’s mobile home and storage container, Young said that it was possible, but would cost about $12,000 for the fence, which would also have to extend over the tops of both structures.
Young said Kibby should have to bear some of that cost, to which Friedman retorted that “quite frankly, that is not Nate’s problem.”
Friedman several times during the hearing — which featured two asides, a recess and a conference in chambers before it was finished — said that since Kibby was arrested nine days ago, there has been very little information coming from the state to the defense about exactly why his client was arrested or, as expected, what additional charges Kibby may face.
To what he called the state’s “flippant” suggestion that he simply ask Kibby what he had done in preparation for trial, an indignant-sounding Friedman pointed out that Kibby is presumed innocent, and that it is the state’s obligation to prove that he did something illegal.
“We’re nine days into the case and we have nothing” as to why the state has charged Kibby with kidnapping and may charge him with other crimes, Friedman said. He added that the situation is “repugnant to due process.”
Young said the defense has the eight-page arrest affidavit, which is still sealed, but Friedman said the affidavit was inconsequential given the thousands of documents he expects to have to pore over to provide Kibby with a vigorous response to the state’s allegations.