BRATTLEBORO -- A Windham County Judge has rejected a motion by John Grega's attorney to dismiss the case, or at least reduce the charge Grega is facing from aggravated murder to murder.
Grega, who was convicted of killing his wife Christine in 1994 and then released from prison in August 2012 when newly tested DNA evidence suggested that someone else was involved in the murder, is awaiting his new trial.
Grega's attorney, Ian Carleton, asked Judge John Wesley to dismiss the charge, or at least reduce the charge because the state has not been able to identify a weapon.
"Dismissal is warranted because the third amended information once again fails to provide the defendant with notice of the essential facts underlying the sexual assault element of aggravated murder," Carleton wrote. "In sum, either the state knows what its theory is and chooses not to inform the defendant, or it does not have a coherent theory and should not be pursuing this matter further."
But Wesley, in his ruling sided with the state, saying that "the inability to state definitively what object was used does not invalidate the charge."
Wesley also said the state has been able to provide a description of the charge that satisfies state law.
Grega is the first person to be released from prison under a 2008 Vermont law that allows DNA evidence to be retested in certain cases.
He was convicted of killing his wife in 1994 and spent 18 years in prison.
On Aug. 22, 2012 he walked out of the Southern State Correctional Facility in Springfield and Wesley later vacated the original conviction and ordered a new trial.
Neither Carleton, nor Windham County State's Attorney Tracy Shriver, wanted to talk on the record concerning Wesley's most recent ruling.
In court documents, Carleton argued that the medical examiner testified that an object was used to sexually assault Christine Grega. Carleton claims that Grega was "ambushed" during the first trial when the state alleged that a beer bottle was used during the assault and Grega was unable to prepare his defense. He said Grega deserves to know what object the state is alleging the murderer used during the assault, which took place in a West Dover condominium in September 1994. Carleton said the Judge should at least reduce the charge if the object can not be identified.
A conviction of aggravated murder carries a sentence of life in prison without parole.
"Because the still missing information pertains to the allegation of sexual assault, this court should exercise its inherent authority to match the state's charging documents to a legally supportable offense, and order that the third amended information be read to allege murder, rather than aggravated murder," Carleton asked the Judge.
Shriver responded to the original motion by saying that the state does not have to prove what the object was, but only has to prove that an object was used during the 1994 assault.
"The defendant's position that the state must prove the identity of the object used defies both the language of the statute and common sense," Shriver wrote. "The defendant's argument suggests that a defendant can avoid criminal responsibility simply by permanently disposing of the object used, thus making identification of the object impossible."
A date has not yet been set for the new trial.
Howard Weiss-Tisman can be reached at 802-254-2311, ext. 279, or firstname.lastname@example.org. Follow Howard on Twitter @HowardReformer.