Judge considering Metzger dismissal

LAKE COUNTY — Among the several motions heard during Allen Metzger’s latest hearing, two were motions to dismiss the charges of deliberate homicide. However, as of press time, Metzger is still on his way to face trial for allegedly delivering a fatal stab to James Finch in a fight at a Ronan bar in August.

Judge Nels Swandel, of Livingston, denied Metzger attorney Lance P. Jasper’s first motion to dismiss based on probable cause. Jasper claimed the prosecution did not have enough probable cause to proceed with the case; Swandel disagreed and said the merits of the case will be heard for trial.

Swandel granted a motion that bans the prosecution from bringing up Metzger’s prior convictions at trial, agreeing with Jasper that it would be prejudicial to the jury.

For the second motion to dismiss, Jasper said there was “spoilation of evidence” that could have been exculpatory to Metzger. Much of Jasper’s argument centered around the security tape at the bar and blood evidence from the scene.

Jasper said the state failed to uphold the legislature’s new self-defense law (as outlined in House Bill 228 passed in the 2009 session of the Montana legislature) when the police failed to collect “all evidence.”

“Officers had the opportunity and the absolute duty to collect and preserve all evidence,” Jasper said.

By only collecting the video evidence the police thought necessary, and not tape of the entire day, the state has denied Metzger evidence that could lead to his exoneration, Jasper said.

The defense attorney said the tape could provide exculpatory witnesses, additional details to the timelines of the incident and evidence of alcohol consumption by both men involved and because it wasn’t preserved — as Jasper alleges the new law requires — the charges against Metzger should be dropped.

Swandel asked Jasper if eyewitnesses wouldn’t do the same thing as the tape. Jasper said eyewitness testimony was not good enough and that the tape was “the only way to provide an unbiased account” of the events leading up to Finch’s death.

“The state isn’t taking the regulations in the new statute to heart,” Jasper said. “My client has an absolute, fundamental right to all evidence as mandated by the legislature.”

Lake County Attorney Mitchell Young said the claims that police didn’t collect all the evidence don’t have any foundation.

“Officers didn’t fail to secure the scene,” he said. “The scene was already being cleaned by employees when officers arrived. They preserved what was left of the scene.”

Jasper said witnesses saw blood spatter in the bathroom days after the incident, and one witness said they saw police tampering with a tape that could’ve been the security video.

“The video is on a harddrive,” Young said. “I don’t know what the witness saw, but it wasn’t the security tape. There is no tape. It’s on a hard drive.”

Young said police collected and preserved evidence as required by law and performed their duties in compliance with both the law and police regulations.

The new statute doesn’t require police to collect specific evidence, Young said. The legislature said that self-defense must be investigated, and it was.

Young also said that swabs taken at the scene are at the state crime lab awaiting analysis.

“They won’t begin analysis until they have a control swab from [Metzger],” he said. “We hope to collect that [on Dec. 23].”

“This is the first case under which this new statute will be tested,” Jasper said in his final statement urging Swandel to dismiss the case.  “If the state’s argument is adopted, the new statute will have no affect.”

Young countered: “Officers had no duty to collect particular evidence. Only to provide and preserve all evidence.”

Swandel said he would have a ruling on the motion sometime in January and there were too many issues to consider to make a ruling before then.

Metzger’s trial is scheduled to begin in April.