Prosecution tried new tactics in second trial

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Tribune staff reports

The prosecution made a few changes from the first Moe Gibbs trial, held in Minot, to the second trial held in Bismarck.

n Called Michael Bourke, a forensic scientist from Connecticut, to the stand. Bourke told jurors about a peer-reviewed study done at his lab that showed little transfer from a person's hand to an object to another person's hand. He said the amount of DNA from Gibbs found under Mindy Morgenstern's fingernails had to have come from "vigorous physical contact."

n Did not call Jeremy Leopold, an inmate at the Cass County Correctional Center who said he heard Gibbs confess to murdering Morgenstern. Under cross examination in the first trial, Leopold also said he heard at least one other inmate confess.

n Did not show a videotaped interview of Gibbs with law enforcement officers on Sept. 20, 2006, the day of his arrest. The videotape showed Gibbs repeatedly denying any involvement in Morgenstern's murder. Jurors in the trial in Bismarck asked to see the tape after an hour of deliberations, but Southeast District Judge John Paulson denied the request because the tape had not been entered into evidence.

n Between the two trials, state crime lab director Hope Olson tested the residue on filter paper holding scrapings from under Morgenstern's left fingernails to see if it was blood. The reddish-brown substance tested "presumptively positive" for human blood. Olson said the test also can return positive tests for ferret, mink and monkey blood.

n Called Gibbs' former sister-in-law, Angela Curry. Curry said Gibbs' told her two days after the murder that he received a gouge on his hands "the other day." Defense attorneys showed video attempting to prove Gibbs did not receive the gouge until after the morning of Sept. 15. Curry also said Gibbs did not talk much about the murder.

n The defense team called four witnesses in Bismarck. No defense witnesses were called during the first trial.

n Betty Schumacher, who works in the financial aid department at Valley City State University, testified to seeing Morgenstern wearing a tan outfit on the day she was killed. Morgenstern was wearing a white shirt and black pants when she was found.

n Leo Worner, a computer expert, told jurors Gibbs' computer showed activity at 1:07 p.m. on the day of the murder. However, Bureau of Criminal Investigation special agent Tim Erickson, who was called in rebuttal to Worner's testimony, said Worner's times were an hour off and the activity actually began at 2:07 p.m.

n Thomas Edwards, a video imaging expert, said his analysis of video from Sept. 15 showed no evidence of scratches or gouges on Gibbs' hands.

n Marc Scott Taylor, a DNA expert, said the transfer of DNA from a person to an object to a person is possible. However, he said the amount of DNA found on Morgenstern's left-hand fingernail clippings did not likely come from that sort of transfer.

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