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Friday, 27 March 2009 |
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By Emily Hone BLACKFOOT — Dorothy Jean Porter, the Firth woman charged with first-degree murder in the death of her husband last summer, was freed from the Bingham County Jail Thursday when 7th District Judge Darren B. Simpson granted a motion by Prosecutor Scott Andrew to dismiss the charge against her without prejudice while the state prepares its case.
Because dismissal without prejudice means the charge can be refiled when the state believes it has gathered sufficient evidence to prove her guilty, Porter's court appointed attorney Scott Axline said after the hearing he objected to the dismissal and may appeal it to the Idaho Supreme Court.
"If it was going to be dismissed our position is that it should have been with prejudice so it couldn't be refiled," Axline said.
He said the dismissal means he can't do any major work on the case unless and until the charge is refiled.
He said it may also mean that unless he does file an appeal there are certain things he won't be allowed to argue if the charge is brought again, such as Porter's constitutional and statutory right to a speedy trial on the initial charge being violated.
But he said the court had taken steps in granting Andrew's motion to dismiss without prejudice to minimize damage to the defense's case.
Porter, 52, is accused of shooting her husband to death at their home on Wolverine Road the night of July 21, 2008 with a modified .22 caliber rifle. She was arrested after sheriff's deputies responding to the report that Greg Porter, 45, had committed suicide concluded that the evidence at the scene didn't support that claim and had been incarcerated under $500,000 bail since.
Simpson on Wednesday denied a motion from Axline to reduce Porter's bail so she could be released while awaiting a jury trial scheduled for April 21, and set a hearing for Thursday on Andrew's written motion to dismiss the charges and Axline's written objection to that motion. He ruled also at that time that he would take up the motion for bail reduction on Thursday if needed.
Andrew wrote in his motion that the state needs more time to get the evidence from the alleged crime scene tested and analyzed.
Simpson said Wednesday he would consider dismissing without prejudice if Andrew could get the County Commissioners to agree to pay for further testing requested by Axline and the defense experts relative to some of the testing being done by the state.
Andrew said Thursday, the commissioners had agreed.
Axline argued before the court that it's been eight months since Porter was arrested and charged with murder, which violates her right under Idaho and federal law to a speedy trial.
He argued that she should not be penalized because the state failed to get the necessary testing of the evidence done.
Andrew said it was motions by the defense that resulted in the delay in getting forensic testing accomplished in a timely manner.
Axline argued that Porter cannot be blamed for demanding tests and procedures he knows will exonerate her of the crime. His concern, Axline said, is that some of the preserved evidence could be consumed or altered by the state's testing so that it could not be tested again by defense experts, and that the memories of witnesses will not stand the test of time.
Simpson agreed that Idaho Code says trial should occur within six months of the prosecutor's information charges being filed. But it's a complex case and throughout the process he has set deadlines and scheduled hearings to make sure it was progressing and that both sides stay reminded of the time element.
Simpson said Porter is entitled to have the evidence tested, and the stance taken by the Idaho State Laboratory that defense experts could not be present for testing of the evidence, and that it wouldn't make a video of the testing for their review, was the main cause of the delay.
In granting the motion to dismiss, Simpson said Axline must be notified by the prosecution if the state lab believes materials to be tested will be used up or altered by the process, so that defense experts can be present for the testing, or a video tape must be allowed so they can see how the testing was done.
He said that which could be altered by testing is to be sent first to defense experts for analysis, or they can come to the state's testing site.
Simpson said Porter is not to be interviewed by the state or its officers without Axline being present. To avoid prejudicing her in the eyes of the community, he said, if the charge is refiled Porter is to be summoned into court instead of arrested and jailed.
Simpson told Porter she would remain free only as long as she makes herself available to the court. Should the charge be refiled and she can't be found, a warrant for her arrest will be issued, he said. "I advise you to maintain contact with Mr. Axline."
Andrew said he might present the evidence to a grand jury when the testing is completed, at which point Simpson said if that happens and Porter is indicted, he might then have to set bail under Idaho law, but if so he would require that it only amount to $1.
"Dorothy and I hope that when Mr. Andrew completes the testing and reviews the evidence he will realize she is innocent and decide not to refile the charges," Axline said.
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Last Updated ( Monday, 06 April 2009 )
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