Lawyer wants new hearing in child abuse case
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The attorney for Randall and Penny West is asking a Superior Court judge to throw out their felony child abuse case and send it back to Justice Court for a new preliminary hearing.
No hearing date on the motion, filed last week, has been set.
Howard Wine, the couple's attorney, said in court documents "no credible evidence of guilt was established" in an April preliminary hearing before Frank Moore, a Pima County magistrate pro tem.
Moore signed an order June 11 finding probable cause that the Wests are culpable in the death of foster child Emily Mays.
The 16-month-old had been in their care for less than a month when she died from brain damage and bleeding caused by a skull fracture, according to a medical examiner's report.
The cause of death was "undetermined," according to that report.
The Wests remain free but have been ordered to report to the court. Penny and Randall West are accused of permitting Emily Mays to be injured or injuring her and have been charged individually with one count of child abuse in which death or serious injury is likely. It is a class two felony.
Wine could not be reached Wednesday. In his motion, Wine states that witnesses at the April hearing in Justice Court "failed to establish any credible evidence of guilt as to whether any crime was actually committed."
The motion also challenges how the judge handled the hearing, alleging he "refused to hear all clearly exculpatory evidence" and permitted a medical expert's testimony to "undermine the credibility" of the defense's medical expert without giving the defense "an opportunity to provide any rebutting testimony or evidence."
The motion also asks for an inquiry into the health of the magistrate, who became "medically incapacitated" after the preliminary hearing, but before he found probable cause.
A hearing before Superior Court Judge John Leonardo is set for July 17.
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what the hell is wrong with the az court system ?????????