Abaraoa defense asks case be dismissed


Abaroa, 33, is accused of stabbing his pregnant wife Janet to death in their home on Ferrand Drive back in 2005.

Last Thursday, prosecutors made the surprise announcement that Janet Abaroa's work computer hard drive and a phone described as a Palm Pilot belonging to her husband had been located in a locked cabinet with other sealed items at the Durham Police Department.

Over the weekend, Abaora's legal team gave the computer evidence to a forensic analyst to be examined. Attorney Amos Tyndall said the analyst found dozens of emails that previously hadn't been seen.

Tyndall said they included messages between Janet and a former boyfriend - some of which were flirty and sexual in nature. Tyndall said it was unfair to get the emails at the end of the prosecution's case because he didn't have the information to use when cross examining state witnesses.

"Getting this hard drive at the end of the case has essentially turned this case on its head," said Tyndall - pointing out detectives and prosecutors had the evidence for eight years, but he was just learning about it.

From the beginning of the trial, prosecutors have painted Abaroa as a man who was domineering, controlling, and verbally abusive towards his wife - while frequently cheating on her. It has maintained Janet stayed in the marriage despite the infidelity and tried to make it work.

Arguing before the judge Monday, Tyndall said not having Janet's emails from the beginning of the trial helped paint a dishonest portrait of Janet and his client.

"She wasn't the angel the state has built her up to be?" Judge Orlando Hudson asked Tyndall.

Tyndall said the computer evidence also showed Janet doing online banking and doing real estate rental searches - countering the prosecution portrait of a woman with no independent will.

Hudson pointed out that the North Carolina Court of Appeals recently ruled against him in another murder case where he dismissed the case based on discovery violations by Durham prosecutors. The appeals court said completely dismissing the case was an extreme sanction. But Tyndall said not having the evidence was extremely damaging to the defense's case, and dismissal is appropriate because of the state's failure to present "substantial" evidence.

Judge Hudson said the appeals court meant he had to consider lesser sanctions than the complete dismissal of the case.

Prosecutor Charlene Coggins Franks argued that the state did not intentionally withhold evidence and the most extreme sanction Hudson should consider would be a mistrial.

"If it is a violation, it did not unduly prejudice the jury against the defendant," said Franks.

Franks also said no prosecution witness has testified that Janet Abaroa had no free will or that she did not have access to money.

After listening to both sides, Judge Hudson denied the defense's requests for a dismissal or a mistrial.

Tyndall told Hudson he would need an undetermined amount of time to get a court order to search the computer servers of Janet Abaroa's former employer to see if more information about the emails can be recovered.

Hudson refused to recess the trial for an undetermined amount of time and said the defense can reach out to the company and report back on how long it might take.

The prosecution presented one more witness Monday before resting its case.

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