Daniel Breijo

The Surrey man charged with the murder of airman Nicholas Van Pelt has claimed the surviving witness in the case has offered contradictory statements in a filing in support of a subpoena seeking recordings and communications with the witness from BEK TV.

Daniel Breijo joined the state’s opposition to BEK TV’s motion to quash the subpoena in his filing on Monday Dec. 1, arguing the state was exercising its ethically and legally required diligence in seeking the information. The surviving victim, identified in court documents as J.B., had appeared in interviews for multiple episodes of a documentary series on the case, produced and broadcast by BEK TV in the last year.

Breijo’s attorney Jesse Walstad claimed J.B. had “offered multiple contradictory statements during law enforcement interviews, her deposition, and aired segments of the BEK interviews.” Walstad argued a failure to disclose J.B. ‘s recorded interviews and related materials would result in a misapplication of the journalist shield statute and create a miscarriage of justice.

“BEK argues no compelling interest exists to support disclosure of the unaired J.B. interview recordings and related communications. It is difficult to imagine a more compelling interest than that which a criminal defendant in a homicide trial has in the recorded recollections of the only eyewitness to the alleged offense,” Walstad wrote.

Walstad requested an “in camera” review of the requested materials, which means the proceeding will not be open to the public. Walstad said the review would allow the defense to determine if any statements or information contained within them includes inconsistent statements, statements of bias or prejudice and admissions of poor memory.

Walstad also asserted North Dakota law requires the prosecution to furnish any statements made by listed prosecution witnesses even when those statements are in the “possession or control of other persons.”

Walstad confronted the argument put forward by BEK TV in its motion to quash that the state could simply depose J.B. again, writing the central issue at stake is determining what contradictions and differences existed between her sworn deposition testimony and the statements given to Bek TV.

“Similarly recorded statements reflecting a witness’s bias, impairments to memory, firmly held beliefs, and desired outcomes are relevant to the factfinder’s credibility determination and essential to meaningful confrontation,” Walstad wrote.

A virtual hearing regarding the motion to quash has been scheduled for Wednesday, Dec. 17. Breijo’s jury trial is currently scheduled to commence on March 16.