BISMARCK -- Defense attorneys unsuccessfully tried to suppress evidence Wednesday regarding scratches on Moe Gibbs' hands, which prosecutors contend came from a struggle with Mindy Morgenstern before her death.
During a break between jury selection for Gibbs' second murder trial, defense attorney Dennis Fisher argued an investigator failed to specify on a search warrant that doctors would be examining Gibbs for scratches.
Two doctors testified during the first murder trial for Morgenstern's death, which ended in July with a deadlocked jury, that a fingernail could have caused the scratches. The doctors also estimated the scratches had occurred around the time of Morgenstern's Sept. 13, 2006, death.
Southeast Judicial District Judge John Paulson denied the defense's motion, upholding the prosecution's argument that the doctors' examination was covered under the warrant.
The prosecution argued in the first trial that Gibbs' DNA was found on scrapings and clippings from Morgenstern's left-hand fingernails because she scratched him as the two struggled. The defense contends the DNA came from a doorknob or common household item in the apartment building the two lived in.
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Also Wednesday, 11 prospective jurors were moved to the next phase of jury selection. After three days of jury selection, the total in the juror pool is now 38.
The court is hoping to have 40 to 45 prospective jurors move onto the second stage from the roughly 120 who received questionnaires about the case. The number will then be whittled down to 14, including two alternates.
Five people were dismissed from moving on Wednesday, the largest amount in one day. A total of 11 people have been dismissed.
The first woman to appear Wednesday was dismissed after telling attorneys she did not trust Gibbs because he changed his name in 2005. Under the name Glen Dale Morgan Jr., Gibbs was convicted of attempted murder in military court in 1993.
Paulson also dismissed a woman who was not asked any questions, a woman who said she had a bias against Gibbs, a college student who said the trial could impact her studies and a young man.
The man originally moved forward to the second stage, but Paulson removed him after the man later told the court he would miss part of next week because of a concert in Fargo.
The media was dismissed from the Burleigh County courtroom twice Wednesday. The first time involved a motion about potential witnesses who did not testify during the first trial, Paulson told reporters before they left.
Reporters were removed a second time after the prosecution objected to a question from the defense.
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Gibbs, 35, is facing a Class AA felony murder charge for Morgenstern's death.
A jury in Minot deadlocked 6-6 over whether the former Barnes County jailer strangled and cut the throat of the 22-year-old New Salem native in her Valley City apartment.
Jury selection continues today.
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