Oct 31, 2007 - 05:40:50 CDT
Prosecutors in the Moe Gibbs murder trial have filed a supervisory writ with the North Dakota Supreme Court in an attempt to gain permission to present a possible motive Gibbs may have had to kill Mindy Morgenstern.Gibbs, 35, a former Barnes County jailer, is accused of killing Morgenstern, a Valley City State University student from New Salem, in her off-campus Valley City apartment in September 2006. A deadlocked jury in Minot could not reach a verdict in the case at a trial that lasted from June 19 to July 12.
Prosecutors called nine witnesses on Tuesday. The second trial is being held at the Burleigh County Courthouse.
Southeast District Judge John Paulson had ordered, prior to the previous trial and prior to this trial, that the prosecution could not use evidence pertaining to sexual charges Gibbs also is facing in two other cases.
Assistant Attorney General Jon Byers said Tuesday afternoon in court that he filed the supervisory writ at the state Supreme Court earlier in the day. Included in the document were transcripts of proceedings closed to the public from May, June and October. According to those transcripts, prosecutors say they believe Gibbs may have been aroused by an alleged sexual act on a female inmate in the Barnes County jail early that morning and later approached Morgenstern with sexual intentions.
The supervisory writ asks the Supreme Court, the highest court in the state, to direct Paulson to vacate his previous order prohibiting prosecutors from mentioning sexual allegations Gibbs is facing in other cases.
Gibbs has been charged in a 2004 gross sexual imposition case in Cass County. He allegedly was linked to that crime by the same DNA sample that linked him to Morgenstern's murder. He also faces six felony charges in relation to allegations that he sexually assaulted female inmates at the Barnes County Correctional Facility. One of the incidents in that case is alleged to have occurred at 6 a.m. on Sept. 13, 2006, the day Morgenstern was killed.
"If you enter into that equation the fact that earlier that morning Moe Gibbs had sexual contact with a sleeping female inmate, um, got himself excited from that and then had no outlet for that sexual excitement, the fact that he would then see Mindy Morgenstern alone at, the, the apartment building, um, it begins to explain a possible motive for the crime," Byers argued at the May hearing, according to the transcript.
Byers is prosecuting the murder case, along with Barnes County State's Attorney Brad Cruff and Barnes County Assistant State's Attorney Lee Grossman.
Prosecutors also offered an alternative to the Supreme Court if the justices do not feel it necessary to order Paulson to vacate his order. The writ asks the court to order Paulson to instead, in that instance, take out a jury instruction that says, in part, "The absence of motive is a circumstance tending to support the presumption of innocence and should be given such weight and credibility as you think it deserves."
Defense attorneys Jeff Bredahl and Dennis Fisher argued at the May and October hearings that including evidence of the sexual-assault-related charges would create miniature trials within the murder trial and could distract and confuse jurors from deciding on evidence pertaining to the murder. They also said evidence at the crime scene does not suggest anything of a sexual nature occurred prior to Morgenstern's death.
"Now had there been any allegation or insinuation made or have any forensic evidence that somehow she was sexually assaulted or anything, it might be a different situation,"Bredahl argued at the May hearing.
Bredahl also argued that Gibbs has pleaded not guilty to all of the sexual allegations.
Prosecutors said during the arguments that they only plan on bringing up Gibbs' criminal history, consisting of an attempted unpremeditated murder conviction from 1993, if Gibbs testifies in the case.
On June 8, Paulson ruled that the "prejudicial effect of those items outweighs their ah, probative value as far as this particular charge is concerned."
In October, prosecutors asked only to include evidence of the alleged sexual assault said to have occurred on Sept. 13, 2006. Byers also argued at that hearing that it was not fair for the defense to be able to argue that the state did not have a motive when the real issue was that the judge would not allow them to present elements of the motive.
Paulson said at that hearing that "the crime scene doesn't support any, anything of a sexual nature going on."
"It is just tenuous to connect that,"Paulson said of prosecutors connecting the alleged sexual assault at the jail with the murder.
Byers notified Paulson and the defense attorneys about the supervisory writ at around 4:30 p.m., just after Paulson had adjourned the court for the day following technical difficulties with a projector during witness testimony. Byers did not give a timeline of when the Supreme Court is expected to act on the writ.
According to the North Dakota Supreme Court Web site, the court may act on such a petition without a response or can set a time for a response and may set a hearing in the matter. The court also can ask for a response from the judge, the Web site said.
Earlier in the day, prosecutors began calling witnesses to the stand. They began with testimony from two of Morgenstern's friends who found her dead in her apartment. Another friend testified to seeing Morgenstern at around 12:20 or 12:25 p.m. on Sept. 13, 2006, and another talked about unsuccessful attempts to contact Morgenstern at around 12:45 p.m. so Morgenstern could come over to her house.
Prosecutors also called people who were in and around the apartment building where both Morgenstern and Gibbs lived on the day Morgenstern died and the first police officer on the scene. The final witness of the day was Bureau of Criminal Investigations Special Agent Mark Sayler. His testimony was cut short by a malfunctioning projector, and he is expected to take the stand again this morning.
Sayler was presenting photographs and sketches of Morgenstern's apartment, as well as photographs of Morgenstern's body when she was found.
Also Tuesday, Paulson refused a motion by prosecutors to remove Gibbs' sister, Breeze Etienne, from court proceedings for a letter by her that showed up on the Internet relating to the case. Paulson would not remove her, but did place her under a gag order already prohibiting attorneys and witnesses from discussing the case.
(Reach reporter Jenny Michael at 250-8225 or jenny.michael@;bismarcktribune.com.)
kd wrote on Oct 31, 2007 9:33 AM:
At-work wrote on Oct 31, 2007 8:18 AM:
Comments are reviewed for taste, tone and language before posting.
Some comments may be used in the Tribune's print edition.
We value and respect your privacy, but The Bismarck Tribune might
disclose certain information to governmental entities if served with subpoena.