The right to silence will protect 2 commissioners
Two sitting commissioners, Sarah Heard and Ed Fielding, pleaded the Fifth Amendment in court affidavits filed Jan. 26 for a trial that does not begin until Feb. 5.
The commissioners had been subpoenaed to testify in the civil trial of former commissioner Maggy Hurchalla, charged with tortious interference in contracts between the county and the South Florida Water Management District regarding the Lake Point mining and water restoration project near Indiantown.
Heard and Fielding had been subpoenaed by both Hurchalla and Lake Point as potential witnesses; however, after Heard filed a motion Jan. 23 asking the court to protect her from having to testify live, Hurchalla struck Heard’s and Fielding’s names from her witness list.
The court was not inclined to grant Heard a protective order, however, or to allow her previous depositions to replace a live court appearance, noting that her testimony about Lake Point, including correspondence and conversations between Heard and Hurchalla, could be central to Lake Point’s case against Hurchalla, according to court records.
Lake Point attorney Ethan Loeb argued in court documents that not all of Lake Point’s questions were related to Heard’s handling of public records, for which Heard has been criminally indicted. He intended to question Heard also as to why she continued to assert that wetlands were being destroyed on the Lake Point project after the county’s Growth Management staff reported that no wetlands had been destroyed, and other related questions.
A sworn affidavit seeking the US Constitutional right of protection from self-incrimination in advance of the trial would preclude the need for a witness to take the Fifth Amendment repeatedly to questions posed while testifying on the stand before a jury.
In their notarized affidavits, Heard and Fielding said that Lake Point attorney Ethan Loeb was “forcing me to testify against my will …” while both are “under active criminal prosecution … stemming from issues directly related to this civil matter.
“It is my intent to invoke my Fifth Amendment right to remain silent if I am called upon to testify in this matter, as any substantive questions asked by Mr. Loeb would require an invocation of my rights.”
They also swore they were making the statements freely and voluntarily, without duress or coercion.
Lake Point claims that Hurchalla used “secretive, wrongful and illegal means and methods” to sway the opinions of county and South Florida Water Management District officials regarding their agreements with Lake Point. It is the last case in the Lake Point lawsuit against Martin County and the SFWMD, which both settled their cases prior to going to court.
The SFWMD gave Lake Point the right to retain their land for the next 50 years, using the property in whatever permitted means to create revenue for the private company, prior to donating it to the SFMWD, and Martin County agreed to pay Lake Point $12 million to end its lawsuit.
The county also paid $502,000 to Lake Point in court-ordered sanctions for public records violations and will give up approximately $6 million in Lake Point’s future taxes and and fees no longer required. The cost to the county of outside attorneys was about $5 million.
Lake Point also listed as a potential witness former county commissioner Anne Scott, who has been charged with four criminal counts of public relations violations. As of Jan. 26, Scott remains silent as to whether she will testify live during Hurchalla’s trial, or will file a similar affidavit seeking Fifth Amendment protection to remain silent.
Heard, Fielding and Scott all have pleaded not guilty to criminal misdemeanor charges for public records violations, and Hurchalla denies any claims of wrong doing in her case. All cases will be tried before juries in the Martin County courthouse.