LIHU'E, Kaua'i — State Attorney General Mark Bennett will remain the prosecutor for the criminal case against retired car dealer Jimmy Pflueger in connection with the Kaloko Dam breach that killed seven people in 2006.

Kaua'i Circuit Judge Randal Valenciano denied a motion yesterday by Pflueger's lawyers alleging "prosecutorial misconduct" by Bennett before the grand jury that indicted Pflueger Nov. 21 on seven counts of man- slaughter and one count of reckless endangering.

The judge determined that Bennett's grand jury inquiry was appropriately conducted, and rejected dismissing the entire criminal case on grounds that Bennett failed to present evidence that could have cleared Pflueger of blame in the dam break.

In keeping the case alive, Valenciano said a grand jury proceeding establishes probable cause that a defendant could have committed a crime. "A prosecutor does not have to put on the defense case" before the grand jury, he said.

The judge set aside May 12 and 13 to continue hearing arguments, begun Tuesday, on whether the attorney general's office shouldn't prosecute the criminal case because of an inherent conflict of interest between that role and the state being a co-defendant with Pflueger and others in pending civil trials. Bennett has insisted that separate teams in his office are handling the criminal and civil cases and there is no conflict.

"We're pleased with the court's ruling and look forward to a trial of this case before a jury of Kaua'i citizens," Bennett said.

The grand jury investigation of the Pflueger criminal charges may have been the most extensive grand jury proceeding in Hawai'i's history as a state, Bennett said.

The state attorney general offered a glimpse of his case against Pflueger yesterday when he reviewed some of the testimony and depositions presented to the grand jury during closed-door proceedings last year, including from:

• Former Belt-Collins consultant Paul Wallrabenstein, who said Pflueger told him Pflueger himself had operated heavy machinery that "pushed the dirt and covered the spillway" at Kaloko as well as other grading around the reservoir.

• Kaua'i real estate agent Michael Dyer, who warned Pflueger via faxed letter that after the spillway was covered with earth, "I think water will flow over a broad area in the middle of the earth dam" in heavy rains.

• Tom Hitch, who owned and ran Kilauea Irrigation Co. Inc., who stated, "I said to Jimmy, 'You can't do this. You can't fill in the spillway. It's the only safety factor.' " Hitch said Pflueger replied, "Mind your own business. It's my private reservoir, private property. I will do what I want."

"If the spillway had still been there ... those seven wouldn't have died on March 14, 2006," Bennett said.

Brian Sun, a California-based lawyer on Pflueger's defense team, wouldn't comment on the assertions of the witnesses Bennett cited, other than to say that "who said what to whom was not the focus of the motion" being argued before the judge.

Sun, who argued most of the defense teams allegations yesterday, said they are "disappointed" with Valenciano's rulings.

"But we're encouraged that the court recognized a lot of what we're talking about as evidence sheds a different light on the case than that presented to the grand jury," said Sun.

"We maintain that he (Pflueger) was not legally or factually responsible for the tragedy at Kaloko," Sun said.

Sun said Valenciano agreed yesterday in a private meeting with attorneys to move Pflueger's criminal trial from June 15 to Oct. 26, to allow attorneys more time to prepare.