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Defense argues for new trial

Attorneys for convicted murderer Moe Gibbs say his defense was "cut off at the knees" because of inadequate funding and argue that he should receive a third trial in Mindy Morgenstern's death.

Attorneys for convicted murderer Moe Gibbs say his defense was "cut off at the knees" because of inadequate funding and argue that he should receive a third trial in Mindy Morgenstern's death.

Defense attorney Jeff Bredahl also cites prosecutorial misconduct, the jury not being sequestered and court rulings the defense disagrees with in a motion filed Monday asking Southeast Judicial District Judge John Paulson to vacate the Nov. 16 guilty verdict in Bismarck and grant Gibbs a new murder trial.

The motion comes on the same day a Dec. 14 hearing was scheduled for Gibbs, 35, to plead guilty to six felony sexual assault charges he faces alleging that he sexually assaulted five female inmates while working at the Barnes County (N.D.) Jail.

It is unknown if a plea agreement has been reached. Neither side would comment Monday.

Bredahl argues in the motion that the state had "unrestricted access and funds for its expert witnesses" in Gibbs' murder trial while the defense "was handicapped" by its $55,000 budget.

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The $55,000 budget includes witness expenses, legal fees and expenses, and miscellaneous expenses.

It is unclear how the money was allocated because the North Dakota Commission on Legal Counsel for Indigents denied a Forum request seeking additional information at this time, arguing the information is exempt from the state open records law.

A DNA expert, a video enhancement expert and a computer expert testified for the defense.

Barnes County has spent more than $72,800 prosecuting Gibbs, according to Barnes County Auditor Ed McGough. That total includes roughly $45,500 spent on Gibbs' first murder trial in Minot, N.D., which resulted in a deadlocked jury in July.

It does not include witness expenses, which are paid by the state, McGough said. The state called 32 witnesses to testify against Gibbs, including three DNA experts and a computer expert, two of whom were employed by the state.

One of the prosecution's DNA experts was paid by the state of Connecticut, where he is a state employee.

It was not unknown Monday how much the state has spent on expert witnesses.

Defense attorney Dennis Fisher lists three expert witnesses "pivotal" to Gibbs' defense that he says attorneys were financially restricted from hiring, including a former New York City chief medical examiner who agreed to testify for a reduced $6,000 retainer.

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The witness' anticipated testimony would have refuted several of the prosecution's allegations and leveled the playing field, Fisher argues.

It is unknown when Paulson will hear arguments regarding the defense's motion.

The prosecution had not responded to the motion by late Monday. A gag order restricts attorneys, Gibbs and witnesses in the case from "giving an opinion, attitude or judgment outside the courtroom."

Gibbs is scheduled to be sentenced Dec. 17 for the murder charge, which carries a maximum sentence of life without parole.

He is scheduled to be sentenced Dec. 20 for a 2004 Fargo rape charge he pleaded guilty to Nov. 26. Under a plea deal in that case, the state will recommend Gibbs receive 12 years in prison and eight years on probation to be served concurrently with any prison time he receives for the Barnes County inmate sexual assaults.

The sexual assault charges he still faces carry a combined maximum of 60 years in prison.

One of the victims told investigators Gibbs sexually assaulted her the morning Morgenstern was killed in her Valley City, N.D., apartment.

Gibbs lived in the same building at the time of Morgenstern's Sept. 13, 2006, slaying.

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Readers can reach Forum reporter Brittany Lawonn at (701) 241-5541 Defense argues for new trial Brittany Lawonn 20071204

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