Southeast District Judge John Paulson rejected a defense request for a mistrial in Moe Gibbs' trial Wednesday morning.

Defense attorney Jeff Bredahl asked for a mistrial after prosecutors indicated Gibbs could testify to refute testimony by prosecution witnesses.

At the time of the request, Bureau of Criminal Investigations Special Agent Dale Maixner was being cross-examined by Dennis Fisher, who is defending Gibbs, along with Bredahl.

Barnes County State's Attorney Brad Cruff earlier had finished questioning Maixner about a videotaped interview with Gibbs from Sept. 20, 2006, the day Gibbs was arrested for the murder of Mindy Morgenstern.

Gibbs, 35, is accused of killing Morgenstern, a Valley City State University student from New Salem, in her off-campus apartment on Sept. 13, 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. The second trial is being held at the Burleigh County Courthouse.

Cruff is prosecuting the case, along with Barnes County Assistant State's Attorney Lee Grossman and Assistant Attorney General Jon Byers.

During Fisher's cross-examination of Maixner, Cruff objected to Fisher asking Maixner about statements Gibbs made during the interview in which Gibbs said several times he was not involved in Morgenstern's death. Cruff said the defense attorneys were asking about Gibbs' denials in an attempt to have their client testify without having to put him on the stand.

"We don't have the benefit of cross-examination," Cruff said after the jury had been removed from the courtroom.

Bredahl asked for a mistrial or for Paulson to issue an admonishment to the jury to ignore Cruff's comments, because Cruff originally raised the objection while jurors were in the courtroom. Bredahl said Cruff's comments raised the inference that Gibbs would have to testify to prove he is not hiding anything.

Bredahl said Cruff's comments were out of order since the Fifth Amendment to the U.S. Constitution gives defendants the right not to testify, and defendants have the right to remain silent.

"I'm not going to grant any mistrial," Paulson said. The judge did remind jurors later that Gibbs cannot be compelled to testify, that he is innocent until proven guilty and that the comments of attorneys should not be taken as evidence.

Paulson also said he would not stop defense attorneys from questioning Maixner about what Gibbs said during the interview.

"It also paints a fair picture in terms of what all is said," during the interview, Paulson said.

Bredahl also said while jurors were out of the courtroom that he felt the videotape of the interview should be shown to jurors. The tape was shown at the trial in Minot, but prosecutors have chosen not to show it at this trial.

"I think the jury should have a right to view that tape," Bredahl said.

Paulson said he would not order prosecutors to show the tape.

While on the stand, Maixner testified to being part of the videotaped interview of Gibbs on the day of his arrest. He said he questioned Gibbs about his activities on the day of the murder, scratches on his hands and what he had been wearing on the day of the murder.

Fisher asked Maixner if Gibbs had said the officers could talk until they were "blue in the face," but it would not make him change his statement.

"Yes, and that's what I'd expect from a street-smart person," Maixner said.

Fisher moved to have Maixner's comment about Gibbs being a street-smart person stricken from the record, which Paulson did.

Maixner said Gibbs told officers he did not know Morgenstern well but would see her at the apartment building where they both lived every two or three weeks.

Also questioned Wednesday were four men who served as alibi witnesses for other "persons of interest" in the case.

The last prosecution witness called Wednesday morning was Jason Lang, the chief corrections officer at the Barnes County Correctional Center where Gibbs worked as a jailer at the time of his arrest. Lang said he reviewed 61 hours of videotape from when Gibbs was working at the jail from Sept. 10 to Sept. 12 and from a meeting at the jail on Sept. 15.

Lang said he never saw Gibbs sneeze, cough or do anything else to indicate he was suffering from a cold on the video. Under cross-examination, Lang said he could not tell whether Gibbs' eyes were watering or whether he was sniffling.

Defense attorneys have contended that Gibbs' DNA ended up on Morgenstern's fingernails through Morgenstern touching an object Gibbs touched. They say Gibbs was suffering from allergies and could have left mucus on a common item in the apartment building.

Prosecutors began examining BCI Special Agent Arnie Rummel Tuesday, but he was not available to continue testifying on Wednesday. After calling their witnesses, prosecutors allowed defense attorneys to call a witness.

"We've taken it a little out of order,"Paulson explained to jurors.

Betty Schumacher, financial aid director at Valley City State University, testified to seeing Morgenstern in the morning on the day of her death. She remembers admiring the way Morgenstern looked when they nearly ran into each other in the hallway.

"She was a very beautiful girl," Schumacher said. "That day she just radiated."

Schumacher said she was "practically running" to a meeting around 11 a.m. that day when she nearly collided with Morgenstern. She said she remembers Morgenstern wearing a tan shirt and tan pants.

However, she added that another woman working in the financial aid office told her Morgenstern was wearing a white shirt and black pants that morning.

Morgenstern was wearing a white shirt and black pants at the time of her death.

Testimony in the case will continue at 8 a.m. today. Prosecutors indicated they will be calling Rummel back to the stand to finish his testimony.

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

The audio files below are courtesy of the Associated Press

Three files labeled Paulson: This is Southeast District Judge John Paulson. He is addressing Brad Cruff, the Barnes County state's attorney, telling Cruff that Gibbs' defense lawyers should be able to ask witnesses what is on an interrogation video of Gibbs.

Cruff is upset because the lawyers are eliciting testimony, based on the video, that Gibbs denied involvement in Morgenstern's murder. Paulson says if Cruff can ask witnesses about what's in the interview, Gibbs' lawyers may also do so.

Paulson also says he does not intend to allow the entire video to be admitted as evidence. In the video, investigators ask Gibbs about other alleged offenses, aside from Morgenstern's killing.

Files labeled Bredahl:

This is Jeff Bredahl, one of Gibbs' defense attorneys, arguing that an edited version of Gibbs' police interrogation video should be introduced as evidence in his trial. He says the video is preferable to having prosecution witnesses describe what it contains.