Defense attorneys are requesting a first-degree murder indictment against Jennifer Nibbe be dismissed because the grand jury heard information it shouldn’t have and didn’t get information jurors had requested.

Nibbe, 34, is scheduled to go to trial next month for the Aug. 31, 2010, shooting death of her husband, 26-year-old James Nibbe, at their house south of Lake Crystal. That motion and others will be considered during a pre-trial hearing Monday.

Prosecutors also have filed a motion asking District Court Judge Bradley Walker to issue orders that would keep a jury from hearing defense evidence about James Nibbe. That evidence includes information about James Nibbe testing positive for HIV, adult pornography that was found in the house, testimony from an expert witness who specializes in extracting information from computers and cell phones and information gathered by a software program that analyzes Internet browsing history.

Pat McDermott, assistant Blue Earth County attorney, said a jury shouldn’t hear the evidence when Jennifer Nibbe goes to trial because her attorneys haven’t shown how it is relevant. McDermott also said he believes it’s too late in the process for Nibbe to use self defense, defense of others or involuntary intoxication as possible defenses during trial.

Jennifer Nibbe told investigators she was abusing prescription drugs and took a very high dosage of Tramadol the night of the murder. Her attorney, Rich Hillesheim, argues in one of his motions that a member of the grand jury had requested more information about that drug use, but it wasn’t provided.

Information provided to a grand jury by prosecutors is kept secret from the public, but transcripts of testimony and juror questions are provided to defense attorneys.

The juror asked if Tramadol might have affected Nibbe’s thinking the night of the shooting. The prosecutor, who isn’t identified in the motion, referred to an investigators testimony that it wasn’t a “hallucinogenic or something to that effect.”

“This answer was pure speculation by (the investigator) and his answer did not address the level of Tramadol that was in Nibbe’s blood,” Hillesheim’s motion said. “When (the juror) brought up the issue later, the prosecutor offered to bring in an expert but told the juror, ‘that’s not going to happen this afternoon.’”

The juror implied he didn’t need to hear testimony from an expert if that was the investigator’s opinion.

Grand jurors often don’t realize the power they have during the indictment process. Unlike jurors in a criminal case, they can call witnesses and investigate beyond what is presented.

Hillesheim’s motion claims the prosecutor presenting information to the grand jury made errors that prevented the jurors from acting independently.

In addition to the information that wasn’t provided about Nibbe’s drug abuse, jurors asked to see photos from the crime scene and hear additional information from a forensics expert. The information wasn’t provided, Hillesheim said.

The motion also claims an investigator incorrectly told the grand jury that gunshot residue tests done on Jennifer Nibbe after the shooting came back “positive.” The report actually said particles found on Nibbe’s hands were not specific to gunshot residue, Hillesheim said.

“The report goes on to state there are several possible interpretations to be made from the particles,” he said in the motion. “The prosecutor kept this important information from the grand jury. Failure to disclose exculpatory evidence that materially affects the decision of the grand jury also subverts the grand jury’s independence.”

Walker has ruled that one portion of Nibbe’s interview with investigators, which took place after she asked to talk to an attorney, can not be presented to a jury during her trial. That portion of the interview was presented to the grand jury, Hillesheim said.

He also pointed out that grand jurors have an obligation to “investigate matters with an open, unbiased and impartial mind.” Hillesheim said the prosecutor also stepped away from his or her advisory role and “tainted” the grand jury while making a closing statement that included the phrase, “She killed her husband . . .”

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