State Attorney General’s Office prepares for appeal in Finley Fultz murder case
The state Attorney General’s Office in court filings argues a Nevada County judge wrongly dismissed a murder charge against Finley Fultz, saying errors made by local prosecutors don’t warrant his release from jail.
State prosecutors, in a request filed last week, ask Superior Court Judge Tom Anderson to shelve his December order dismissing Fultz’s case. They argue Anderson should have held a retrial for Fultz, and not dismissed his charge outright. Additionally, Fultz should remain jailed pending an appeal of Anderson’s order to the Third District Court of Appeal.
It’s unknown how long the appeal will take.
Anderson had temporarily delayed Fultz’s release, initially set for Dec. 28, until Jan. 11, pending the filing from the Attorney General’s Office. That office now requests Anderson permanently postpone his order dismissing the case and keep Fultz jailed.
Anderson, the week before Christmas, dismissed Fultz’s murder case saying prosecutors failed to disclose critical information to Fultz’s defense attorney. Prosecutors and law enforcement also violated Fultz’s constitutional rights, Anderson ruled.
State prosecutors say those errors were ordinary. The judge corrected them when he granted a mistrial in October.
“And even were the errors grave, dismissal was still not warranted because a fair retrial remains possible,” the court filing states.
Fultz, 29, is accused of fatally shooting Isaac Zafft at a Penn Valley marijuana grow in July 2014. He and two other men — Nathan Philbrook and Daniel Devencenzi, both 34 — initially faced murder charges. Philbrook and Devencenzi pleaded guilty in April to manslaughter. Philbrook also pleaded guilty to second-degree attempted robbery.
Philbrook was sentenced to 23 years in prison. Devencenzi, who agreed to an 11-year prison sentence, is scheduled for sentencing today.
Anderson in his dismissal ruled prosecutors should have told Fultz’s defense attorney that Philbrook and Devencenzi’s pleas were a package deal. Additionally, local prosecutors made those deals contingent on the men testifying about certain facts.
State prosecutors dispute both rulings, saying no dismissal was warranted.
“Rather, a retrial — where the defense could use any previously undisclosed information — could readily protect both defendants’ right to a fair trial and society’s interest in adjudicating the truth,” the court filing states.
The Attorney General’s Office states nothing required Philbrook and Devencenzi to testify to specific facts. Instead Anderson used an email sent two months before their pleas when making his decision.
They called the dismissal of a case an extraordinary event, saying it only should occur when prosecutors completely destroy the chance of a fair retrial.
Anderson never considered this, state prosecutors claim.
“Its order failed to explain why lesser available sanctions are insufficient and never found that the possibility of retrial has been completely removed,” the filing states. “This was error.”
Switching to Fultz’s possible release, state prosecutors argue he’s been convicted of manslaughter in an unrelated case. Additionally, he’s been connected to a prison gang and has ties to several states.
That means Fultz has a reason to flee if released pending his retrial, prosecutors say.
To contact Staff Writer Alan Riquelmy, email firstname.lastname@example.org or call 530-477-4239.
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