WaKEENEY — A WaKeeney man convicted three years ago on charges he conspired to commit murder will have a hearing Tuesday for a new trial or acquittal based upon criminal activity by the then police chief.

Scott Bollig is serving a 117 month sentence for conviction of conspiracy to commit first degree murder. Arrested in February 2014, he was accused of lacing pancakes he served to his girlfriend, Naomi Abbot, with an abortion drug. She suffered a miscarriage of an 8- to 10-week old fetus several days later.

In September, Bollig’s attorney, Daniel C. Walter, Norton, filed a motion for a new trial, citing as cause Bollig’s cell phone was not legally acquired and the perjury of Terry Eberle, who was WaKeeney chief of police during the Bollig investigation.

The conviction, Walter wrote in the motion, was based entirely upon evidence taken from text messages on Bollig’s cell phone, but there is conflicting evidence wether or not the phone was obtained legally. The motion states Bollig testified he signed a written consent for law enforcement to take his cell phone under a promise from Eberle he would get the phone back, but it was not returned.

Furthermore, he cites the diversionary agreement between Eberle and the state, which outlines several instances during the Bollig case in which Eberle claimed under oath he had never recorded interviews.

Eberle was arrested and charged in May 2017 with blackmail, harassment by telecommunications device, attempted interference with law enforcement, intimidation of a witness or victim, tampering with a public record, and two counts each of theft, attempted official misconduct and making false information.

In Eberle’s preliminary hearing in November 2017, it was revealed the investigation by the Kansas Bureau of Investigation had uncovered a recording Eberle made of conversations between himself and and WaKeeney City Administrator Hardy Howard.

The former police chief pleaded guilty in February 2016 to official misconduct and entered the five-year diversion.

“Eberle has now been fired from his position because of criminal activity for which he was investigated going as far back as at least 2012,” the motion states.

“If he perjured himself as admitted in the Diversionary Agreement, it is reasonable to believe that other portions of his testimony may have been exaggerated or embellished including the manner under which Bollig’s cellphone was acquired by law enforcement. This problem is underscored by Eberle’s clear predilection toward prevarication,” Walter wrote in the motion.

“Accordingly, Eberle should not have been permitted to testify or the information concerning his dishonesty should have been furnished to the Defendant which would have likely resulted in a different outcome,” Walter wrote.

Bollig was initially charged in February 2014 with first-degree murder, felony aggravated battery and misdemeanor distribution of adulterated food. Later, the conspiracy charges were added.

In a November 2015 trial, a Trego County jury convicted him on the lesser conspiracy charges, with the judge dismissing the domestic battery charge, finding it was part of the more severe crime of conspiracy to commit first-degree murder. He was sentenced in February 2016.