Posted: Jan 10, 2012 4:08 PM by Melissa Anderson (Helena)
Updated: Jan 10, 2012 5:36 PM
The Lewis & Clark County Attorney's office wants to make sure that the Montana Supreme Court allows them to prosecute all charges against Brian John Temple.
Temple was charged with assault on a peace officer - and several other counts - after being shot once in the chest by Sgt. Peter Callahan in May.
District Judge Reynolds granted a motion to dismiss evidence on that count because the windshield had been removed from Temple's truck, which he determined was tampering with evidence.
While prosecutors originally filed an appeal, they are now going to file a writ of supervisory control, which could allow the case to be tried with each count against Temple in one trial.
County Attorney Leo Gallagher said, "That's the most serious count. That's the count where we allege that he assaulted a peace officer. And so that's a crime of violence and that's the most serious count. And we wanted that considered as to guilt or innocence in conjunction with the other offenses which were drugs, theft and obstructing a peace officer."
Gallagher says he expects the Montana Attorney General's office should have the formal application of the writ filed sometime next week.
If the supreme court denies the writ, Temple would not be allowed to be tried on the assault charge.
He expects the Supreme Court to make a ruling on the case in the next month or so, which he says is a much speedier process than an appeal.
(October 27, 2011) The trial date of Brian John Temple, who was shot in May by a Helena police officer while trying to avoid questioning, is still up in the air.
It will be up to Judge Reynolds to decided whether to change the date of Temple's, currently scheduled for November 15th.
The jury draw is scheduled for Monday.
Attorneys for both sides met with the judge briefly on Thursday to discuss whether recent motions to dismiss parts of the case will impact the trial date.
County Attorney Leo Gallagher said that even though they plan to file an appeal with the Montana Supreme Court, the rest of the trial can move forward.
"It does not, in the state's opinion, prevent the state from going forward with a trial as to the remaining allegations and the state would intend to do so on November 15th as originally scheduled."
But public defender Jon Moog said that would be double jeopardy, telling the judge, "You can't have a trial with a writ hanging above the district court's head. Most importantly is if the state is successful in its appeal they don't get two trials. It's double jeopardy."
DNA results taken from Temple are expected to be available from the State Crime Lab on Friday.
Judge Reynolds ordered the attorneys to also file final briefs by Friday; he will then decide by Monday if the trial should be moved or can go forward as scheduled.