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Von Ehlinger defense: New evidence, witness leading and rights violations

Jon Cox filed a motion Thursday to describe why he believes the former Idaho lawmaker should be acquitted or given a new trial.

BOISE, Idaho — This story contains graphic content that may be disturbing to some readers.

Former Rep. Aaron von Ehlinger filed his motion for acquittal or a new trial on Thursday, and his defense submitted 14 pages to describe why they believe he was not given fair trial based on witness testimony, "new" evidence and potential violation of constitutional rights.

Von Ehlinger, 39, was convicted in April by a 12-person jury after after a 19-year-old statehouse intern accused him of rape, saying he took her to dinner and then back to his apartment where she was forced to perform oral sex. He was scheduled to be sentenced in July, but that was postponed due to the defense appealing his conviction. Von Ehlinger will get a hearing to decide if he will get a new trial on Aug. 25.

If not, he could be sentenced to one year or life in prison.

RELATED: Former lawmaker convicted of rape requests acquittal or new trial, release on his own recognizance

The motion, filed by the former lawmaker's attorney Jon Cox, asks the court to grant acquittal or a new trial.

The motion says the state was "leading" one of the testifying witnesses, sexual assault nurse Ann Wardle, by asking her if von Ehlinger forced himself into Jane Doe's mouth. 

Wardle previously testified she was the one that examined Doe on May 11. Doe told Wardle that she had told von Ehlinger "no" and said "I don't want to do this," but he had straddled her with his knees pinning her arms and forced himself into her mouth. When Doe pulled her head back in resistance, she received a lump from hitting her head on the headboard or wall, to which Wardle said she could feel with her hand. When he could not finish, she testified, he ejaculated on her stomach.

RELATED: Rape trial begins for former Idaho lawmaker

"The state further tried to illicit testimony from Wardle that defendant forced his penis into her mouth by pinning down her knees," the motion said, since the state continued to ask Wardle about what happened next. 

Cox also says in the motion that there is "new" evidence -- evidence that he can prove Doe made conflicting statements to someone only referred to as, "B.B."

This evidence is sealed, but the motion says that this evidence could have been brought up if Doe had testified and the defense was able to cross-examine her.

Doe ran out of the courtroom mid-testimony after she paused on the stand, saying, “I can’t do this.” 

Ada County Deputy Prosecutor Katelyn Farley told the judge that Doe would not be back to finish her testimony, and the jury was ordered to strike what she said, pretending like she was never there to begin with.

"If this evidence had been discovered earlier than during deliberations, it is likely that the defense would have subpoenaed (Doe) to insure that such evidence could be considered by the jury," it said.

However, Judge Michael Reardon gave Cox the opportunity to file for a mistrial after Doe bolted from the stand. He didn't take it. Cox also did not file a subpoena for Doe to testify after the first appearance.

RELATED: 'I can't do this': Intern who accused Idaho lawmaker of rape bolts mid-testimony

Lastly, the motion asks for acquittal or a new trial on the grounds that Cox believes von Ehlinger's Sixth Amendment rights were violated because he did not get the opportunity to face his accuser in court.

"The defendant asserts that the manner in which the state attempted to produce the accuser and the happenings that took place upon her taking the stand and then abruptly leaving, denying the right to fully confront and cross-examine, are 'other grounds' upon which a new trial can be granted," Cox wrote in the motion.

Idaho law does not require a victim to testify at trial.  If there is other sufficient evidence that’s presented during a trial, a jury can use that information to reach a verdict.

The state will be able to file a response to the motion before von Ehlinger attends his hearing on the matter for Aug. 25.

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