- Associated Press - Wednesday, May 6, 2015

CHARLESTON, W.Va. (AP) - Attorneys for two former executives charged in a chemical spill said in court Wednesday that prosecutors should be taken off the case because they were affected by the spill.

In U.S. District Court in Charleston, attorneys for ex-Freedom Industries officials Gary Southern and Dennis Farrell contended that prosecutors were conflicted enough to warrant their recusal.

Prosecutors countered that defendants had the law and their facts wrong.

In January 2014, a Freedom tank leak spurred a tap-water ban for 300,000 people for days.

Defense attorneys specifically focused on U.S. Attorney Booth Goodwin’s wife, Amy Shuler Goodwin.

They said she had a large stake in the spill as the current state tourism commissioner and former spokeswoman for Gov. Earl Ray Tomblin during the spill.

“We’ve not found a single case where a prosecutor was allowed to prosecute a case where he was a victim of an alleged crime,” said Mark Moore, Southern’s attorney.

They also pointed to answers in a questionnaire that aimed to weigh possible conflicts for prosecutors. They described prosecutors traveling to get clean water, having their kids out of school for days and other effects from the spill.

Assistant U.S. Attorney Philip Wright said the defense’s strategy was to “repeat something long enough and loud enough” that people will buy it.

He said nothing constitutes a conflict for the prosecutors, such as physical injury, mental anguish, loss of income or destruction of property.

Both defendants have pleaded not guilty to pollution charges. Southern also pleaded not guilty to fraud in Freedom’s bankruptcy case.

Southern’s attorneys also argued that there was no reason to seize almost all of his assets, including millions of dollars, his Bentley luxury car and other items.

They said the government needed to prove Southern financially benefited from the alleged crimes. Prosecutors said the threshold only required retaining, not adding, wealth due to the charges.

Judge Thomas Johnston hopes to rule on both issues by a June 1 hearing. A trial is scheduled for October.

Defense attorneys also indicated they would try to get the case moved out of the region, and planned to produce a public opinion poll to bolster their argument.

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