POCATELLO — A district judge is considering arguments to dismiss murder charges against two brothers accused of killing a Pocatello man during a physical altercation last June.

Judge Robert C. Naftz on Wednesday during a pretrial motions hearing at the Bannock County Courthouse took under advisement motions to dismiss the second-degree murder charge against Gabriel Moreno, 26, and the principal to second-degree murder charge against his brother, Anthony Moreno, 24.

The Moreno brothers, both of Pocatello, are accused of killing Nathan Tad Richardson, 30, during a fight in an alleyway between the 500 blocks of East Center and East Clark streets on June 24, 2017.

Justin Oleson, the Blackfoot attorney representing the Morenos, argued that the charges against his clients should be dismissed or remanded back to magistrate court because new evidence has surfaced that could have impacted Magistrate Judge Rick Carnaroli’s earlier decision during a preliminary hearing to allow the charges against the brothers to proceed to district court for possible trial.

In his argument, Oleson said that enhanced video evidence acquired by state prosecutors and shared with him last month shows that Richardson may have initiated the altercation.

The video evidence was captured on a security camera installed on the 6th District Juvenile Detention Center located across from the alleyway where the altercation occurred.

While the video evidence was available at the beginning of the court proceedings against the Moreno brothers, Bannock County Prosecutor Steve Herzog said the angle and distance from which the footage was captured didn’t initially reveal any usable evidence.

But after prosecutors solicited the services of a forensic video specialist, the detention center video footage was enhanced to zoom and focus on a vehicle in the parking lot of the alley where the altercation occurred.

Oleson argued in court on Wednesday that the footage shows Anthony and Gabriel Moreno inside their vehicle attempting to reverse out of the alleyway when Richardson approaches the passenger side where Gabriel was seated and forcibly removes him from the vehicle.

Further, Oleson argued that two witnesses said they were among the last people to see Richardson alive and observed him say shortly before the altercation, “Do you want to see someone get dropped? Watch this.”

“This goes to our position and the enhanced video supports it that Nathan Richardson left the Center Street bar, was outside and went over and attacked the Morenos,” Oleson said.

The enhanced video and witness statements were just one aspect of Oleson’s request that the charges against the brothers be dismissed.

In addition to the new evidence, Oleson argued that the magistrate court used a previous Idaho Supreme Court ruling incorrectly when deciding the charges against the Moreno brothers should proceed to district court for possible trial.

Oleson argued that the Idaho Supreme Court case State v. Porter was incorrectly used to support binding the Morenos over to district court because the “underlying facts of both cases are different.” Unlike the Moreno case, Oleson argued that the Porter case involved an unprovoked attack followed by the defendant continuing to strike a victim two or three times while the victim was on the ground.

“So the difference you’re arguing is that the Porter case was unprovoked ... and you’re saying once I view the enhanced video that it will show that the victim in this case actually started the fight?” Naftz asked Oleson.

Oleson replied, “I’d say (Richardson) initiated the altercation, yes.”

Another aspect of the dismissal motion was Richardson’s autopsy results.

Bannock County Coroner Kim Quick previously told the Journal that his office ruled Richardson’s death as a homicide as a result of the physical altercation in which he was knocked down and then fatally struck his head on the pavement.

Oleson argued that in addition to the injuries on the back of Richardson’s head, the autopsy indicated Richardson only sustained two injuries to his face consistent with blunt force trauma. Further, Oleson argued that the Snapchat video of the altercation between the Morenos and Richardson only shows Gabriel Moreno striking Richardson twice while he and Richardson were standing in the alleyway.

“(Magistrate Judge Carnaroli) said (Gabriel) could have struck (Richardson) again while he was down,” Oleson said, referring to the August preliminary hearing. “But it didn’t happen. There is no physical evidence to support it.”

Both the autopsy results and enhanced video were not available to the defense during the preliminary hearing, Oleson added.

The final part of Oleson’s dismissal request asked Judge Naftz to be “the gatekeeper” and interpret a subsection of Idaho’s self-defense statutes.

Idaho law states, “No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary.”

Oleson argued that in this case it is the court’s, not the jury’s, responsibility to make a determination on whether the Morenos should be placed in “legal jeopardy” by facing criminal charges for the incident involving Richardson, meaning he would like Naftz to decide if the case should head to trial.

“It’s a sorting game, Your Honor,” Oleson said. “The court has the responsibility pursuant to the Legislature to make the determination whether someone should be placed in legal jeopardy or not.”

Bannock County Prosecutor Steve Herzog argued that the implications of the new evidence are the opinions of the defense attorney and would not be matters of fact for a jury to consider. Herzog said a jury would be unable to make sense of the enhanced video without annotations provided by the video specialist.

“I don’t think the court will be able to glean the same information that defense counsel has represented in court,” Herzog said.

Asked by Judge Naftz to describe his feelings about Oleson’s argument that state law requires the court to act as a gatekeeper to determine whether the self-defense argument is so obvious and clear that the case shouldn’t even reach a jury, Herzog said, “I think it’s an extremely novel argument but I don’t think there is any authority in Idaho for it.”

Several other motions from both the defense and the state were presented to Naftz on Wednesday.

Naftz approved a motion ordering both the state and defense to disclose main and rebuttal witnesses ahead of any trial in the case and before each subsequent day of the trial, approved a motion to lower Gabriel’s bond amount from $1 million to $800,000 and approved another motion to allow Gabriel to appear in court in plain clothes.

Gabriel is still being held at Bannock County jail while Anthony has been released on bond. The brothers were arrested by Pocatello police at the scene of the altercation shortly after it occurred.

Because of the pending motion to dismiss the charges against the brothers due to the new video evidence, Naftz denied a motion to dismiss Magistrate Judge Carnaroli’s decision to bind the Morenos over to district court.

Naftz denied another motion in which Oleson stated the brothers’ right to a speedy trial has been violated because the case has gone on undecided for several months, and the judge denied a motion to remove Anthony’s bond amount of $200,000 and allow him to maintain his release from incarceration on his own recognizance.

Naftz decided to not yet rule on motions to allow the enhanced video as evidence, to limit or exclude certain aspects of the Snapchat video, to release Anthony’s cellphone from evidence or to allow the state to acquire the passcode to Anthony’s cellphone.

It’s unclear when Naftz will rule on those motions and the new video evidence motion to dismiss.

The court documents regarding the Moreno brothers have been sealed by the prosecution, but Oleson said the trial is currently set for May 1 and could last two weeks. The state previously argued successfully to have the Moreno brothers tried together for Richardson’s death.

If convicted of the charges against them, the brothers will each face 10 years to life in prison.