MANKATO (TEC News) -- The attorney for accused murderer Jennifer Nibbe is asking the judge to reconsider his recent ruling making her jailhouse confession admissible in court.
Attorney Rich Hillesheim filed the Notice of Motion and Motion Reconsideration on Tuesday.
Judge Bradley Walker ruled against the defense in the previous motion asking that Nibbe's confession the day after her September 10, 2010 arrest outside her place of employment in Mankato be suppressed.
Judge Walker, in his February 7th ruling, also rejected the defense request to throw out any statements Nibbe made to law enforcement outside the crime scene on August 31, 2010, in a ride to the hospital, after the hospital at the Justice Center, during a ride back to Lake Crystal, and during a September 1, 2010 conversation at a friend's home.
Judge Walker did, however, rule that investigators should have given a Miranda warning to Nibbe after a break in the interview 90 minutes after it started. In his ruling, Judge Walker wrote the interrogation transformed from a non-custodial to a custodial one.
Those 20 minutes were thrown out.
When Nibbe was arrested on September 10, she was read Miranda and declined to speak with investigators.
However, detectives were contacted by jail staff the evening of September 11, notifying them that Nibbe wanted to speak with them.
Transcripts and video of the interview show Nibbe being read Miranda again and waiving her right to have an attorney present.
In his current motion, Hillesheim writes that "law enforcement was aware that the Defendant had legal representation at the time of her arrest, but opted to question the Defendant without contacting her attorney."
Court records indicate Nibbe had spoken on the phone from the jail with attorney Earl Gray. However there doesn't appear to be any contract with Gray for his services.
During her September 11th confession, Nibbe asks detectives "So if I plead guilty on Monday what is going to happen to me."
She also asked about a public defender.
In the prosecution's answer to the initial motion to suppress, Assistant County Attorney Patrick McDermott provided details of the conversation between Nibbe and BCA Special Agent Michael Anderson.
Jennifer Nibbe (JN): "Um can I ask some question or no?"
Michael Anderson (MA): "You can but, but what we have to, what we have to clarify a couple things and just for the record is that you initiated and told the jail that you wanted to talk to us."
MA: "So that's why we came here."
MA: "And met with you. And then the other thing is for us to talk to you at all we have to read you your rights cuz you're in custody here."
Anderson then reads Nibbe her rights again.
MA: "Do you understand each of these rights I've explained to you?"
JN: "I do."
MA: "And having them in mind are you willing to speak with us at this time?"
Nibbe, according to the interview transcripts, goes on to admit that she doesn't have a lawyer.
JN: "Um for, one thing Monday is um because the lawyer that I wanted to get and as I'm thinking about things and things are going through my mind um if I decide not to hire this lawyer you said one gonna be appointed for me Monday…"
McDermott argued to the courts that the investigators were "overly caution in giving a second Miranda warning and obtaining the defendant's revocation of her right to counsel before eliciting any incriminating statement."
McDermott writes the "statements are clearly admissible."
In his latest motion, Hillesheim writes that "legal representation is the sole factor required to determine whether counsel must be notified of the questioning of their client."
Hillesheim is also asking Judge Walker to dismiss the indictment due to the destruction of evidence "that would confirm of deny the possibility of an alternative perpetrator or contribute to Defendant's right to defense."
The defense is arguing that pornography found in the victim's pickup truck was destroyed by law enforcement and could have been important to Jennifer Nibbe's defense. They also argue investigators failed to collect or test clothing worn by the defendant's son.
Judge Johnson declined to dismiss the charges based on a "right to confrontation" and "fundamental fairness" saying the Defendant had already given her confession and no indication that the deceased's possession of pornography would have any bearing" on the case.
Judge Johnson also ruled law enforcement had no reason to believe the Defendant's son was involve in the crime and is not material.
A hearing has yet to be scheduled for the judge to hear the new motion.