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Prosecutor: N.D. director got a break

BISMARCK -- A judge's decision to help the director of the North Dakota Aeronautics Commission avoid serving a weekend in jail was unusual, and no record of the bond hearing was kept, a prosecutor said.

BISMARCK -- A judge's decision to help the director of the North Dakota Aeronautics Commission avoid serving a weekend in jail was unusual, and no record of the bond hearing was kept, a prosecutor said.

"Normally, your run-of-the-mill defendant would have spent the weekend in jail," said Richard Riha, the Burleigh County state's attorney. "We have a certain set of procedures that we follow, and it wasn't followed in this case. That's disconcerting."

Riha is prosecuting Gary Ness, North Dakota's aeronautics director for more than 20 years, on a theft charge alleging he took a misplaced envelope with $1,770 in cash from the counter of a Bismarck gas station.

Release

South Central District Judge Robert Wefald ordered Ness released shortly before 5 p.m. Friday. Bismarck police had arrested Ness about an hour before.

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Ness was required to promise to show up for future court appearances and stay within Burleigh and Morton counties. He did not have to post bond.

Wefald said Ness' attorney, Tom Dickson, Bismarck, had called him Friday to request a bond hearing after Ness was arrested, and he agreed to hold one.

"I had time. I knew what the charge was," Wefald said Tuesday. "I knew (Ness) was a public official. I knew he wasn't a flight risk .?.?.?. I saw no reason to keep him in jail over the weekend."

Wefald said he knows Ness personally, and the two men work out at the same Bismarck health club. No recording was made of what was said at the Friday hearing, which Wefald said was an oversight. "It wasn't my plan not to make a record" of the hearing, he said.

Ness, 63, faces a felony charge that carries a maximum punishment of five years in prison and a $5,000 fine. Wefald has disqualified himself from further proceedings in the case.

Ness is accused of picking up a cash-stuffed envelope after a woman left it on the counter of a Bismarck gas station.

The woman later returned to look for the envelope, saying she had forgotten it. Police then looked at a recording from the station's surveillance camera to determine what had happened and identified Ness as the person who took the envelope.

Under North Dakota law, someone who "retains or disposes of property of another when he knows it has been lost or mislaid" is guilty of theft.

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Charges

Riha said that at the time Wefald held the Friday hearing, no charge had been filed against Ness and prosecutors did not even have a police report in hand. Bryan Denham, an assistant state's attorney, rushed upstairs to handle the proceeding.

"We didn't have any information on the case at that time. (Wefald) called a hearing sort of at the last minute," Riha said. "(Denham) went up and informed the court that we didn't have any information on the case, and nevertheless, the judge released the defendant from jail. Then, there was no record kept of the hearing, which is highly unusual."

Ness appeared briefly in court again Tuesday to hear Judge Donald Jorgensen go over the charge against him. Jorgensen told Ness he was presumed not guilty and that he was entitled to a preliminary hearing, which has not been scheduled.

Riha asked Jorgensen to repeat the conditions of Ness' release to make sure they were included in the court record.

The prosecutor said he did not object to releasing Ness on his promise to show up for future court dates. He also said he does not believe Wefald's actions harmed his case against Ness.

"I assumed that he would be released on his promise to appear anyway," Riha said. "It won't hurt the case; I'm confident of that."

The Aeronautics Commission administers airport grants, compiles industry reports and statistics and acts as an advocate for rural air service. The commission itself has five members, who are appointed by the governor and hire the commission's director.

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