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Thursday, May 01, 2014

Ind. Decisions - "It is a ruling that appears to be unprecedented in Indiana"

Rebecca S. Green's story today in the Fort Wayne Journal Gazette, headed "Murder case likely headed to Allen court," reports:

The pending murder case against 35-year-old Andres Gonzalez Jr. appears to be headed to Allen County, according to a ruling Wednesday by a Noble Superior Court judge.

Judge Robert Kirsch ordered the entire case transferred to Allen County, where, according to court documents, Gonzalez killed 36-year-old Erin Justin in a Fort Wayne garage. It is a ruling that appears to be unprecedented in Indiana.

In July 2011, Justin’s body was pulled from a rural Noble County lake, about a month and 30 miles away from where she was last seen. She had been tied to a concrete block before she was dumped in the water, and there were drugs in her system.

But an autopsy was inconclusive as to the cause and manner of death, and investigators were unable to determine where she died.

Nothing happened for more than two years after the discovery of Justin’s body until a tip came into law enforcement in March. Using that information, police focused on a pair of Fort Wayne brothers – Andres Gonzalez Jr. and Victor Gonzalez, 32.

With their statements and information from other witnesses, Noble County Prosecutor Steve Clouse filed a murder charge against Andres Gonzalez, as well as a charge of moving the body from the scene of a violent or suspicious death. * * *

Andres Gonzalez’s attorney, Noble County Chief Public Defender James Abbs, argued in a written motion and at a hearing that while Indiana law allows the crime of murder to be tried in the county where the body is discovered, the state’s constitution provides those charged with a crime the right to be tried in the county where the crime is alleged to have occurred.

Abbs argued the case should be dismissed outright, but in lieu of that sent back to Allen County for trial.

Clouse, through his deputy prosecutor J. Everett Newman, argued Tuesday that Noble County had a duty and obligation to investigate the case after Justin’s body was discovered in the lake. Even though information about where or how she died remains inconclusive, the body was last handled in Noble County and the case should be tried there, Newman said.

During the hearing, both sides agreed they could not find similar cases, at least at the state’s appellate or Supreme Court levels, in which such a request had been made, ruled upon and appealed.

In his ruling issued Wednesday, Kirsch wrote that Andres Gonzalez has a “constitutional and statutory right to be tried in the county in which the offense was committed.”

The court must look at the facts as they exist now, Kirsch continued, rather than the possibility they may change during the course of a trial.

“At best, the state can only argue that is does not know where (Justin) was killed,” Kirsch wrote, saying the state’s documents support the theory that Justin was killed in the Fort Wayne garage.

“It can be reasonably determined from the state’s affidavit of probable cause that the offense was committed in Allen County and not in Noble County,” Kirsch wrote.

On Wednesday, Kirsch granted Abbs’ motion for transfer after taking the issue under advisement Tuesday.

Posted by Marcia Oddi on May 1, 2014 10:30 AM
Posted to Ind. Trial Ct. Decisions