By Dave Maxwell
Former Pahranagat Valley High School football coach Ken Higbee has filed a writ of Habeas Corpus with the 7th Judicial District Court in Pioche.
The writ, submitted Sept. 1 by his attorney Bret Whipple of Las Vegas, challenges the jurisdiction of the court due to lack of probable cause, improper procedures, and improper admission of evidence at the preliminary hearing held May 30 in Meadow Valley Justice Court before Judge Mike Cowley.
A writ of habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine if the detention is lawful.
Habeas corpus places the burden of proof on those detaining the person to justify the detention.
However, Higbee has not been arrested in relation to the case nor spent any time in jail.
The 34-page document states that “Dr. Higbee is restrained in his liberty through a criminal information and indictment in Lincoln County, Nevada, and the officer by whom he is restrained is Lincoln County Sheriff Department, Sheriff Kerry D. Lee.”
The writ further states that “The restraint upon Dr. Higbee’s liberty through the criminal information and indictment is unlawful and illegal in that there was insufficient evidence to indict Dr. Higbee on all of the charges alleged in the Indictment and Criminal Information.”
Last month, District Attorney Daniel Hooge dismissed all charges against plaintiff Deanna Jenkins of Alamo. Higbee said he was pleased with the dismissal of charges against Mrs. Jenkins and hopes the district attorney will see fit to do the same in his case.
Whipple explained that the writ addresses four points which warrant dismissal of the indictment issued against Higbee in April of this year.
In summary, (1) the Justice Court improperly denied Higbee’s emergency motion for a continuance, (2) five binders containing thousands of pages of proposed documentary evidence were admitted without proper foundation and authority at the preliminary hearing, (3) without the improperly admitted evidence, the state’s case against Dr. Higbee is insufficient to establish probable cause as to each count, (4) the improperly admitted binders do not correspond to each count of the complaint, and the course pursued by the prosecution makes it impossible to know which evidence supports each individual count of the complaint.
Whipple also noted that this does not mean the evidence in the binders would be sufficient even if it had been properly presented and admitted at the preliminary hearing.
Higbee, former head football coach at Pahranagat Valley High School and principal at C.O. Bastian High in Caliente was accused in April 2017 of 226 counts of using his position and privileges as principal to buy items with funds from C.O. Bastian, unlawfully transferring those items to himself or his family, or diverting items he purchased to benefit third parties not involved with C.O. Bastian High School. The State has also alleged various acts of forgery in conjunction with the alleged actions. The writ details many of the improper proceedings of the court.
In conclusion, Whipple states, “The materials collected by the State are indeed vast and voluminous … to authenticate all those would be a time- consuming task.”
He adds that the district attorney’s office is taking on a serious, time-consuming burden of producing admissible evidence against Dr. Higbee. “Taking on that responsibility means that the State must carefully follow the rules of evidence while attempting to produce sufficient evidence as to each individual of the 226 count indictment.”
The writ claims that “The State improperly cut corners, and because the Justice Court allowed those corners to be cut, Dr. Higbee is presently subject to an indictment which is not backed by competent evidence establishing probable cause. Under such circumstances, habeas relief is necessary to remedy the ongoing injustice … the court should dismiss the indictment.”