Bismarck Tribune - Bismarck News - Gibbs trial goes to jury

Gibbs trial goes to jury - with audio

Nov 14, 2007 - 12:48:13 CST

By JENNY MICHAEL
Bismarck Tribune

After deliberating for about one hour, jurors in the Moe Gibbs murder trial asked Southeast District Judge John Paulson for permission to watch a videotaped interview of Gibbs with law enforcement.

The interview in question was taped on Sept. 20, 2006, the day Gibbs was arrested for the murder of Mindy Morgenstern, a Valley City State University student from New Salem.

Gibbs, 35, is accused of killing Morgenstern in her off-campus apartment in Valley City. A deadlocked jury in Minot could not reach a verdict in the case at a trial that lasted from June 19 to July 12.

The jury was given the case at 3:40 p.m. Tuesday, and attorneys were called back into the courtroom around 4:40 p.m. to deal with the question.

The video was an area of contention between defense attorneys and prosecutors during the trial. Prosecutors, who showed the video in Gibbs' first trial, decided not to show it at this trial, which is being held at the Burleigh County Courthouse. Defense attorneys argued repeatedly that it should be shown. Paulson did not force prosecutors to show the video.

Paulson decided shortly before 5 p.m. that jurors would not be able to see the video because it was never entered into evidence and was not presented to the jury. At 5:01, he told them they could go home for the night. Jury deliberations will continue today.

Tuesday was the 11th day in the trial and began with instructions for the jury from Paulson. Then, attorneys on each side delivered closing arguments.

Barnes County State's Attorney Brad Cruff began his approximately 45-minute closing argument around 8:40 a.m. Cruff is prosecuting the case along with Barnes County Assistant State's Attorney Lee Grossman and Assistant Attorney General Jon Byers.

Cruff went through the events of Sept. 13, 2006, the day Morgenstern was killed. The last person to see her was a childhood friend, who said they parted around 12:25 p.m. Morgenstern drove home after that from the Valley City State University library.

"It's at that time that her life became intertwined with the defendant Moe Gibbs," Cruff said.

Cruff focused mostly on DNA from Gibbs found on clippings and scrapings from Morgenstern's fingernails, a period of time in the middle of the day on Sept. 13 when Gibbs was unaccounted for, and Gibbs' ability to commit the murder.

Cruff told jurors Morgenstern was able to tell who killed her with the DNA on her fingernails.

"He left his calling card under Mindy's fingernails," Cruff said, also noting that a DNA expert felt the amount of DNA on Morgenstern's fingernails came from "vigorous physical contact" between the two.

Gibbs did not use electronic communications between 12:34 p.m. and 1:40 p.m. on Sept. 13, which was highly unusual for him, Cruff said.

"If he's awake, he's in touch with somebody," he said.

He also explained that Gibbs, a former boxer and football player, could have killed Morgenstern quickly.

"Not just anybody can choke the life out of somebody in seconds or minutes,"he said.

Cruff said Pine Sol poured on Morgenstern's body likely was to get rid of evidence, but the killer likely wasn't thinking rationally enough to pour it on her fingers.

"It was not premeditated. It was not a rational act. He may not have even known he was scratched at the time," he said.

Defense attorney Jeff Bredahl presented the defense's closing argument, which lasted more than three hours. Bredahl is defending Gibbs along with Dennis Fisher.

Bredahl said juries in Scotland have the option of a third verdict besides "guilty" and "not guilty." Panels in that country can choose "not proven," and he said if this jury had such an option he would feel better about the case.

Bredahl stressed that jurors are not deciding whether Gibbs did or did not murder Morgenstern but rather they are deciding whether prosecutors proved their case beyond a reasonable doubt.

"Not guilty means the state failed to prove their case," he said.

Bredahl focused largely in his argument on problems in the investigation into Morgenstern's murder. He said partial DNA profiles found on items at the crime scene should have been identified.

"The state has forced you to guess whether the DNA on the knives was coincidence or something worse," he said.

He also made repeated attempts to discredit the testimony of Hope Olson, the director of the state crime lab, Michael Bourke, a Connecticut scientist who testified about DNA transfer, and law enforcement officers in the case. Bredahl said Olson, Bourke and the officers are "advocates" for the state, willing to do or say anything to get a conviction.

He said law enforcement officers from the Bureau of Criminal Investigations and the Valley City Police Department made contradictory statements and urged jurors to "impeach" their testimony. He also told jurors the state could not prove a motive in the case and indicated that leaned toward proving Gibbs' innocence.

Byers delivered an approximately 50-minute rebuttal of Bredahl's closing argument. He said prosecutors had built their case, like a house, "brick by brick."

"They're the big bad wolf," he said, motioning toward the defense table.

Byers said investigators did not pick out Gibbs as a suspect, then find evidence to implicate him. The evidence, such as the DNA on Morgenstern's fingernail clippings and scrapings, came prior to Gibbs' arrest, he said.

Byers pointed out inconsistencies between Bredahl's opening statement and closing argument, and areas Bredahl had said he would prove to them but never mentioned in trial. Byers urged jurors to rely on their own memories, not what attorneys on either side told them to remember.

"Remember the testimony," he said. "Don't remember what Mr. Bredahl and I say."

He said the state cannot give a clear motive why Gibbs would kill Morgenstern, that they can't prove why he would follow her into her apartment.

"Whatever he went there for, it went bad,"he said. "Once she was dead, he wasn't going to go through with that motive."

Byers told jurors the evidence should lead them to find Gibbs guilty.

"It was Moe Gibbs. He murdered Mindy Morgenstern on Sept. 13, 2006,"he said.

(Reach reporter Jenny Michael at 250-8225 or jenny.michael@bismarcktribune.com.)

The audio files below are provided by the Associated Press. The context of the files is below the player.

JonByers1 is Jonathan Byers, an assistant attorney general. He is talking about defense lawyer Jeff Bredahl's claims that investigators in the Moe Gibbs case changed their testimony to help their chances for a conviction.

JonByers2 is Byers describing testimony from a defense expert, Thomas Edwards, who analyzed video of Gibbs and said he could not see scratches on Gibbs' hands from a struggle with Morgenstern after it allegedly occurred. Byers says Edwards also couldn't see a prominent tattoo on Gibbs' bicep.

JonByers3 is Byers saying that the prosecution's lack of evidence of a motive for Gibbs to kill Morgenstern is unimportant.

JonByers4 This is Jonathan Byers, an assistant attorney general, describing how the case against Moe Gibbs was developed. He mentions Hope Olson, director of the state Crime Lab; Christina Judd, Gibbs' then-wife; and Judd's sister. Gibbs attorney Jeff Bredahl objected to the reference to an "unsolved case," but Southeast District Judge John Paulson overruled his objection. The "unsolved case" is an alleged rape in Fargo three years ago.

JeffBredahl5 This is Jeff Bredahl, one of Gibbs' lawyers, responding to the summation of Brad Cruff, the lead prosecutor and the Barnes County state's attorney.

JeffBredahl6 This is Gibbs attorney Jeff Bredahl, saying Gibbs did not have time to kill Morgenstern during the time investigators believe she died. He accuses investigators of changing their proposed timeline of the crime to fit the circumstances.

JeffBredahl7: This is Gibbs attorney Jeff Bredahl, speculating about the motive for Morgenstern's slaying.

JeffBredahl8: He is urging the jury to acquit Gibbs if they believe there isn't enough proof to convict him.

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Comments

To Clarify wrote on Nov 14, 2007 9:56 PM:

" I just wanted to clarify my last post. Besides Mindy's DNA on the knife there was someone else's too. Moe's DNA was not found on the knife the defense has said. "

To Clarify wrote on Nov 14, 2007 9:27 PM:

" To Sheila - Mindy's DNA wasn't found under Moe's fingernails Moe's DNA was found under Mindy's fingernails. They said three times the amount of his DNA then her own. Also - if there wasn't Moe's fingerprints/DNA found on the knife could he have been wearing gloves? They said that Moe's DNA wasn't found on the knife, but another person's was. Where is that person at, and who's DNA is it? "

Sheila wrote on Nov 14, 2007 8:20 PM:

" DNA is DNA. It doesn't lie or truth tell. Other evidence with DNA is the clincher. Just because enormous amounts of all kinds of Mindy's DNA was found under Moe's fingernails does not mean he killed her. Why did the police stop investigating all possible assailant options? Hmmm...North Dakota is 99.99999999999 percent white folks. Moe is black. Hmmmmm. I wonder. "

Just a thought wrote on Nov 14, 2007 3:09 PM:

" I dont think Moe Gibbs is innocent. Maybe two people did this crime together, but could this case and the one in Minot be related. Both beautiful, dark-haired girls, young and living on their own while going to college. Both crimes included knives. If not caught, these crimes will continue to happen. "

KATZ wrote on Nov 14, 2007 2:20 PM:

" Reply to: Kevin; the DNA found under Mindy Morgenstern's fingernails, was an incredible amount of Moe Gibb's DNA. Experts testified that Moe Gibb's DNA did NOT get under Mindy Morgenstern's fingernails through touching a common object. The extraordinary amount of Moe Gibb's DNA got under Mindy Morgenstern's fingernals through "vigorous physical contact"! DNA DOES NOT LIE! Mindy Morgenstern is telling us, from her grave, through her DNA, that Moe Gibbs murdered her! Moe Gibb's DNA alone is enough evidence to convict Gibbs of Mindy Morgenstern's murder. However, Moe Gibbs was also at the murder scene, at the time of Mindy Morgenstern's murder. Gibbs also cannot account for (over) one hour of time, the exact time that Mindy Morgenstern was murdered. Gibbs also has been charged with sexually assaulting female prisoners. If the jury does not convict Moe Gibbs, I truly fear that we will be reading about Gibbs in the papers again, and there will be other innocent victims. If Gibbs is allowed to walk free, his next victim could be YOU, your sister, mother, daughter, aunt, niece, cousin, wife, girlfriend or friend! Justice must be served for Mindy Morgenstern! The people must be protected against Moe Gibbs! "

sarahr wrote on Nov 14, 2007 2:03 PM:

" to cindyloo...i haven't heard anything about the case in minot either. "

m wrote on Nov 14, 2007 2:00 PM:

" well maybe if the Court wouldn't tie the hands of the prosecutors like not being able to mention a motive. not being able to mention he has other trials awaiting him when this one is over. why he changed his name. "

Maybe there were two wrote on Nov 14, 2007 1:38 PM:

" Since there is hair and DNA from someone else, maybe Gibbs didn't act alone? Was that possibility ever presented? I think he did it; but the other evidence of DNA that did not match Gibbs could have come from another intruder as well. Who's to say he was alone. "

Cindyloo wrote on Nov 14, 2007 12:42 PM:

" Is it just me or for this trial, the press (radio, TV) just went on and on about this trial. You'd swear it was the first murder trial ever in Bismarck. And, is there any news on the unsolved murder of the college student in Minot? "

Concerned: wrote on Nov 14, 2007 11:56 AM:

" Was Mindy sexually assaulted that day? Moe Gibbs is a guilty man and should pay for his crime. He should have been convicted long ago and now Mindy's family has to watch this and relive that day for well over a year. That is so sad. "

Racist Biker wrote on Nov 14, 2007 11:53 AM:

" I think we will see another hung jury. The reason well just look at the posts 5 say he did 4 (including me) say he didn't or the case wasn't proved. I personally don't think the prosecutors did a good job of proving it. The police didn't investigate enough pure and simple. However those that think he did don't worry even if another hung jury is here he will still go to jail from the other charges that will be going to court later. "

Erin wrote on Nov 14, 2007 11:22 AM:

" Just because DNA was found under Moe's fingernails doesn't mean he murdered Mindy. Were they having an affair? We don't have all the facts nor were we in the courtroom for the entire trial. We are speculating. This is America and people are innocent until proven guilty. "

Unreal wrote on Nov 14, 2007 11:18 AM:

" To Kevin....a back scratch? Give me a break! Yeah she must have done that for him because he "helped" her carry the laundry basket. They said it was blood! "

Kevin wrote on Nov 14, 2007 10:51 AM:

" Do we know what kind of DNA evidence was found under her fingernails? Was it body fluids or skin particles? Because, although DNA doesn't lie, niether does it prove violence. It may have been from a back scratch. "

Concerned wrote on Nov 14, 2007 10:15 AM:

" Unfortunately, not an open and shut case. I believe he did it, but neither side did their job. "

KATZ wrote on Nov 14, 2007 10:14 AM:

" An incredible amount of Moe Gibb's DNA was found under Mindy Morgenstern's fingernails after her murder. Experts testified that Gibb's DNA could only have gotten under Morgenstern's nails, by vigerous contact, and NOT from touching a common object. Gibb's DNA under Morgenstern's fingernails is ENOUGH EVIDENCE TO CONVICT Gibbs of Morgestern's murder. Also, Moe Gibbs was at the murder scene, at the time of Morgenstern's murder. Also, Moe Gibbs has prior history of sexual assault, which includes sexual assaults on female prisoners. Pray that the jury does the right thing and convicts Moe Gibbs of Mindy Morgenstern's murder. If Gibbs is allowed to walk free, his next victim might be YOU or your loved ones! "

sarahr wrote on Nov 14, 2007 9:35 AM:

" its going to be a hung jury. (trust me i hope that it isn't) but, the defense and the prosecution acted like a bunch of clowns. "

Exactly wrote on Nov 14, 2007 8:34 AM:

" Exactly DNA CAN'T LIE so if they wanted to make a for sure case perhaps they should have found out who's dna it was from the hair in her hand or the dna on the knife that she was stabbed with. Not that what this guy has done to anyone is correct or condoned on any level but if they wanted to have a simple case with no doubt in anyone's mind perhaps they should have done a little more investigating the case and other people and coming up for reasons as to why the dna on the knives and the hair in her hand didn't match him either, leaves alot open on this one I believe. May justice be served to whomever took this young lady's life, my heart and thoughts go out to her family during this difficult time./ "

agree wrote on Nov 14, 2007 8:17 AM:

" AMEN! Hog Man! "

Hog Man wrote on Nov 14, 2007 6:25 AM:

" I certainly hope the jury in Burleigh county isn't as bamboozled as the jury in Ward county was. How can people be fast-talked out of believing FACTS by a slick lawyer? DNA CAN'T LIE. "

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