The judge in the second Moe Gibbs murder trial has denied a defense motion to exclude the testimony of doctors who examined cuts on Gibbs' hands.

Gibbs, 35, a former Barnes County jailer, is accused of killing Mindy 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.

The second trial is being held at the Burleigh County Courthouse. Southeast District Judge John Paulson is presiding over the case. Wednesday was the third day of jury selection in the case, with the fourth slated to begin today. Jury selection was interrupted Wednesday morning by argument of pretrial motions that were decided by Paulson.

Defense attorneys Jeff Bredahl and Dennis Fisher moved to suppress the testimony of Dr. Paul Diegel and Dr. Tanya Diegel. The doctors testified at the first trial that cuts on Gibbs' hands likely occurred around the time of Morgenstern's murder.

Fisher argued the defense point, saying a search warrant seeking to find evidence under Gibbs' clothing did not specify that doctors would be involved in the search.

"If they didn't define it, they shouldn't do it," Fisher said.

Barnes County Assistant State's Attorney Lee Grossman argued to include the testimony. Grossman is a prosecutor in the case, along with Barnes County State's Attorney Brad Cruff and Assistant Attorney General Jon Byers.

Grossman said the North Dakota Supreme Court has found in past cases that search warrants do not have to detail everything to be seized in a search, because investigators would be scrambling to get new search warrants for every item.

"No search warrant would ever pass any muster" if that was necessary, Grossman argued.

Paulson denied the motion.

"I view the Diegels just as an arm assisting the police,"the judge said.

Paulson also handled another motion dealing with witnesses, but the public was removed from the courtroom while attorneys argued their points. The judge asked the public to leave several other times during the day, including once when prosecutors objected to defense attorneys questioning potential jurors about whether they would like to know why Gibbs' DNA was found on Morgenstern.

Prosecutors objected because they are not obligated to provide a motive for a crime to prove a case.

Paulson excused four women and one man out of 16 potential jurors interviewed on Wednesday. The potential jury pool now contains 17 women and 21 men.

Paulson dismissed two women who felt Gibbs was guilty at the motion of defense attorneys. Another woman was dismissed after attorneys approached the bench to discuss her questionnaire with Paulson. The judge said they agreed to dismiss the woman because it might be "uncomfortable" for her to sit through the trial.

Another woman was dismissed over concerns that she would miss too many college classes.

A young man originally was selected to move on to the next round of selections but later was removed from contention after he e-mailed the court to indicate he would not be returning Monday night from a concert in Fargo.

He had earlier said the concert would not keep him from serving. Paulson agreed to dismiss him but said he would be sending him a letter about jury service.

Paulson has been telling prospective jurors to call the clerk of courts office on Friday to find out when they next need to report to court. He said 40 to 45 jurors likely will be brought back Monday or Tuesday.

He said the jury pool later will be narrowed randomly to 36, then attorneys will decide the last 14 jurors to remain.

The jury will consist of 12 members and two alternates.

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