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Case not over despite jury's guilty verdict

BISMARCK - Two key phrases - "vigorous physical contact" and "unsolved case" - may have spelled the difference between a jury deadlock and conviction in Moe Gibbs' two murder trials.

BISMARCK - Two key phrases - "vigorous physical contact" and "unsolved case" - may have spelled the difference between a jury deadlock and conviction in Moe Gibbs' two murder trials.

One of the phrases gives Gibbs' lawyers a point to make during his likely appeal to the North Dakota Supreme Court.

A jury on Friday convicted the former Barnes County jailer in the September 2006 murder of Mindy Morgenstern, 22, a Valley City State University student who grew up in New Salem. Morgenstern was strangled and stabbed in her off-campus Valley City apartment, in a building where she and Gibbs both lived.

It was Gibbs' second trial. His first, held this past summer in Minot, ended because of a jury stalemate during deliberations. Afterward, some jurors said there were disagreements among them about the strength of the prosecution's DNA evidence in the case.

Investigators found Gibbs' DNA on the fingernails of Morgenstern's left hand. During both of Gibbs' trials, his attorneys argued that Morgenstern could have picked up the genetic evidence by touching a surface after Gibbs touched it.

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During Gibbs' second trial in Bismarck, Michael Bourke, a forensic scientist in Connecticut's Department of Public Safety, provided the stout rebuttal of the defense's "touch DNA" argument that the first trial lacked.

The amount of DNA on Morgenstern's nails, he said, indicated that it came from "vigorous physical contact," saying it could happen if one person scratched another while playing football. Transferring that amount of genetic material by touching the same surface was "absolutely not" possible, Bourke said.

The "unsolved case," which prosecutors brought up during testimony and closing arguments, refers to a 2004 rape charge, for which Gibbs is scheduled to go on trial next month in Fargo.

Investigators had matched DNA from Morgenstern's left-hand fingernails to a DNA sample taken from the alleged rape victim. Investigators later found that Gibbs' DNA matched both samples, which made him the primary suspect in the probe into Morgenstern's slaying.

Prosecutors are not usually allowed to tell jurors about other allegations against a criminal defendant. But Southeast District Judge John Paulson allowed the "unsolved case" reference during testimony by Hope Olson, the director of North Dakota's crime laboratory, and it was included in a slide presentation shown to jurors during the prosecution's closing argument. Paulson denied a defense request for a mistrial.

Gibbs' lawyers, Jeff Bredahl and Dennis Fisher, have not said whether they will appeal the jury's guilty verdict. But Bredahl asked that a gag order affecting attorneys and witnesses in the case be continued "for purpose of appellate issues," and requested a transcript of the trial, which is needed in a Supreme Court appeal.

The "unsolved case" reference, and whether it prejudiced jurors against Gibbs by providing an opening for speculation about his other problems, is certain to be a key element of any appeal.

Jurors declined comment on the case after they handed up their verdict Friday, but one of the jury's two alternates said afterward that he considered the "unsolved case" language to be a reference to a sex crime.

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It was DNA evidence and testimony from the unsolved case that helped investigators to identify Gibbs as a suspect in Morgenstern's death, said Jonathan Byers, an assistant attorney general who helped to prosecute Gibbs.

Gibbs "is nowhere in the picture," Byers said during closing arguments, "until there's a match with an unsolved case." Case not over despite jury's guilty verdict 20071118

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