POCATELLO — Bannock County’s prosecutor has moved to disqualify Bannock County public defenders from handling the retrial of a man accused of manslaughter after a deputy prosecutor left to work as a public defender in January, according to court records.

Bannock County Prosecutor Steve Herzog, in a motion filed on March 12, argues former Bannock County Deputy Prosecutor Ashley LaVallee, who joined the Bannock County Public Defender’s Office on Jan. 22, cannot assist in defending Martin Edmo Ish, 63, of Fort Hall, due to the conflict of interest that arises from having been one of the prosecutors who handled Ish’s first jury trial in 2017.

Further, Herzog argues the entire Bannock County Public Defender’s Office should be disqualified as well because it didn’t screen LaVallee, a process that assures any confidential information she might have regarding any potential cases — specifically Ish’s — remains protected.

“LaVallee clearly has a conflict of interest,” Herzog wrote in the motion. “It is the state’s position that LaVallee formerly represented the State of Idaho as a ‘client’ in a ‘matter’ captioned State v. Ish and that Ish’s interests are ‘materially adverse’ to the interests of the former client, The State of Idaho, and that the State of Idaho did not give informed written consent to LaVallee being involved in (future litigation concerning Ish).”

Ish was charged in June 2015 with second-degree murder for allegedly beating Eugene Lorne Red Elk, a part-time bouncer at Duffy’s Tavern in downtown Pocatello, to death in 2009. A jury during a trial in April 2017 found Ish guilty of voluntary manslaughter in connection to Red Elk’s death. Ish appealed the ruling and in March 2020 the Idaho Supreme Court remanded Ish’s case back to Bannock County for a retrial.

The Bannock County Public Defender’s Office has represented Ish throughout the entire adjudication process of his case while LaVallee was one of three Bannock County prosecutors who were intimately involved in the case until she left for the Public Defender’s Office in January.

Ish’s new trial is currently scheduled to begin in Bannock County on April 6 as long as COVID-19 case counts don’t further delay jury trials in the county.

The motion Herzog filed centers around Rule 1.11 documented in the Idaho Rules of Professional Conduct, which became effective in 1986 and sets forth the professional and ethical responsibilities of lawyers throughout the state.

Bannock County Chief Deputy Public Defender J. Scott Andrew says he plans to oppose Herzog’s motion, expecting to file on Friday a motion and a signed affidavit from LaVallee detailing the screening process his office enacted upon her hire.

Andrew says the motion he plans to file will object to his office being disqualified because soon after LaVallee was hired Andrew informed all members of the Public Defender’s Office that a few cases LaVallee handled as a prosecutor would be exempt from discussion.

“The first or second week that (LaVallee) was here we held our staff meeting over Zoom where I announced to everybody that (LaVallee) was involved in three cases, Ish being one, and that all conversations with LaVallee about those cases would be off limits,” Andrew said. “I also went in and removed all of the files and documents associated with Ish’s case from our shared (hard) drive and moved them into my personal drive.”

Herzog, however, asserts in his motion that even if the Public Defender’s Office properly screened LaVallee, it did not promptly inform the Prosecutor’s Office about the screening as Rule 1.11 requires.

“Even if adequate notice were provided today, such notice would be ineffective because it was not promptly provided,” Herzog wrote in his March 12 motion. “It would be safe to assume the (Public Defender’s) Office knew they were going to hire LaVallee well in advance of her ultimate departure date of Jan. 22, 2021, and had the ability to provide such notice.”

Andrew said he was still working on the exact wording of the motion he plans to file and could not comment specifically on how he would challenge the time element regarding the notice of screening.

Andrew said in addition to it being his duty to provide Ish with effective representation, disqualifying his office would unfairly prejudice Ish considering the trial is set to begin in less than two weeks. Removing the Public Defender’s Office and assigning a conflict attorney would almost certainly delay the start of Ish’s trial in order to allow the new defense team to familiarize themselves with the case and prepare an effective strategy, Andrew added.

The Bannock County Public Defender’s Office said LaVallee would not be commenting for this story and Herzog declined to offer comments in addition to what’s stated in his motion.

Herzog’s motion asks the judge assigned to the case, Rick Carnaroli, to appoint Ish a new attorney after disqualifying the Public Defender’s Office.

Carnaroli has scheduled a hearing for Monday at the Bannock County Courthouse to allow both parties to argue for and against Herzog’s motion.