By Travis Crum

August 14, 2017 - Mingo County, West Virginia prosecutors do not have three cellphones seized as evidence from one of the men accused in the 2016 fatal shooting of coal executive Bennett "Ben" K. Hatfield.

No one in the prosecuting attorney's office has seen them. However, references to texts and Facebook messages will be presented to trial jurors, said Mingo Prosecuting Attorney Jonathan "Duke" Jewell.

Jewell said the phones apparently were lost when the case was handed off to West Virginia State Police. The phones were on the list of evidence signed over to Mingo County Sheriff's Department deputies.

Brandon Lee Fitzpatrick, 19, of Louisa, Ky., was in court on Thursday for a pretrial hearing before Mingo County Circuit Judge Miki Thompson.

Police said Fitzpatrick and Anthony Raheem Arriaga, 22, of Gibonsburg, Ohio, conspired to steal Hatfield's Denali SUV and then fatally shot him on May 23, 2016, at the Mountain View Memory Gardens in Maher. Hatfield, 59, was a longtime executive at Massey Energy before eventually becoming CEO of Patriot Coal.

A trial date for Arriaga has been set for Sept. 25, while Fitzpatrick's trial date is Oct. 5.

Police seized three cellphones from Fitzpatrick when he was apprehended in Kentucky shortly after the slaying. The phones were then signed over to West Virginia State Police troopers in charge of Fitzpatrick's extradition to Mingo County. The phones became lost at some point in that exchange, Jewell said.

No text messages or any other data were taken from the cellphones before they were lost. Jewell does intend to present jurors a recorded phone call Fitzpatrick allegedly made from jail referencing the phones' contents.

"He was directing people to go down to the police station and get these phones and wipe everything off of them and then get on Facebook and delete all of that," Jewell said.

The missing phones are a "major problem" for the defense, said Susan Van Zan, Fitzpatrick's attorney. Several defense witnesses' testimonies could be backed up by information found on the phones, she said.

"This would have been crucial evidence in this case," Van Zant said Thursday.

Judge Thompson said the missing evidence did not rise to the level to dismiss any of Fitzpatrick's charges. However, the missing phones could be worked to the defense's advantage, she said.

"Well, the jury is going to love to hear about that Ms. Van Zant," Thompson said. "Certainly you are going to be able to argue against any information and the fact these cellphones are gone."

Jewell said he did not foresee an issue with the missing phones and does not see prejudice to the defense. There was "clearly no evidence we tried to intentionally hide or destroy evidence," he said.

Thompson ruled a jury will be allowed to hear recorded phone calls Fitzpatrick made to friends and family while in jail. Van Zant had asked to strike the calls from evidence because she said it was an invasion of her client's privacy.

Prosecutors provided her with volumes of recorded phone conversations, she said.

"I believe there are highly prejudicial and there was no testimony under oath," Van Zant said.

Mingo Prosecutor Jonathan "Duke" Jewell argued the recorded phone messages would be pertinent to the state's case. Fitzpatrick was aware that those conversations could be used against him, Jewell said.

"The state has a right to use these statements," he said. "He was in jail with a recording telling him he is about to be recorded."

Thompson also requested transcripts of several statements Arriaga allegedly made to police and one alleged statement to reporters.

During one police interrogation, Arriaga requested to end questioning but a police officer continued to question him anyway, said Jane Moran, one of Arriaga's attorneys. That should have been interpreted to end the questioning until a lawyer is present, Moran said.

Moran requested those statements be removed from evidence because police are interpreting them as confessions when, she said, no lawyer was present. Jewell said he would use those statements against Arriaga.

Thompson said she would need to read the transcripts before deciding if they would be released to the jury.

Both defense lawyers and prosecutors said they are awaiting DNA evidence to be returned from the West Virginia State Police Forensics Laboratory.