The lawyers for Melissa Jenkins say she is too untrustworthy to be forced to testify against former boyfriend and co-defendant Daniel Ehrlick in his upcoming murder trial for the beating death of Robert Manwill last summer.
Jenkins lawyers told 4th District Judge Darla Williamson Thursday that Jenkins is a self-admitted and diagnosed compulsive liar and will be setting herself up for a perjury charge if she doesnt corroborate some statements she made to Boise police and others during the Robert Manwill murder investigation.
They also say whatever Jenkins does say in Ehrlick's trial will make it even harder for her to get a fair trial later this year due to intense media coverage of the case.
Jenkins, Manwills mother, is also charged with first degree murder. Jenkins is accused of knowing her 8-year-old son was beaten for weeks by Ehrlick in a pattern of escalating physical violence that climaxed in a severe and ultimately fatal head injury - and that she did nothing to stop it.
Court testimony and documents have revealed Jenkins made incriminating statements about Ehrlick to police investigators during the investigation - and it appears prosecutors want her to testify about those statements during Ehrlicks jury trial.
Prosecutors say they can compel Jenkins to testify by offering derivative use immunity - which allows her to testify against Ehrlick with the stipulation that whatever prosecutors learn from that testimony cant be used against Jenkins in her own trial.
Defense attorney Rob Chastain said that isnt fair to Jenkins because she will likely lie and commit perjury, which would allow prosecutors to charge her with another crime. In their brief to the court, Jenkins attorneys claim she lies 95 percent of the time, according to court testimony.
I dont think there is any way the court can assured she will give reliable testimony, Chastain told Williamson Thursday.
Chastain also said prosecutors cherry picked the statements Jenkins made to police and others that supported their case and ignored contradictory statements she made to others.
Ada County Deputy Prosecutor Dan Dinger told Williamson they plan to ask Jenkins only about statements she made which can be corroborated by other witnesses - like how Manwill appeared to be injured and need of medical help the day he went missing and later determined to have died.
Dinger also said the intent to get Jenkins to testify against Ehrlick is not to charge her with perjury, but to get to the truth about what happened to her son.
We are certainly not looking to backdoor (any evidence) into her trial, Dinger said. The state only wants to present reliable testimony.
Dinger dismissed the cherry picking claim, saying cross-examination about what Jenkins would testify to would ferret out how truthful her statements to police were.
We are simply asking her to come in and testify truthfully, he said. (Jenkins) has absolute control whether she testifies truthfully or not.
Chastain also said he considers Jenkins a victim in the murder of her son and thus should be allowed to attend Ehrlicks trial - which would be problematic since witnesses are generally not allowed to attend trials.
Williamson said she doubted she would allow that whether Jenkins testifies or not and pointed out defense attorneys have not filed a motion asking for that access.
Prosecutors say federal case law clearly allows for derivative use immunity and defense arguments do not apply that law.
Williamson, who appeared to be skeptical of Jenkins attorneys' arguments, said she would file a written decision on the motion.
Jury selection for Ehrlicks trial is set to begin in late September. Jenkins trial is scheduled to begin in November.
Williamson has said numerous times she expects no further delays in the trials and has kept strict deadlines to keep the trial on track.
Defense attorneys filed a motion to change venue for both trials, saying the intense media exposure about the case since last summer will make it impossible to pick a fair and unbiased jury.
Williamson said she wants to try to select an Ada County jury first before figuring out if the trial needs to be moved.
Prosecutors say Ehrlick beat Jenkins' son in a pattern of "escalating physical violence" that ended in Robert's death "on or about" July 24 - the day the boy was reported missing and the start of a community search effort that drew more than 2,300 volunteers, the FBI and national attention, and that sparked daily press conferences by the Boise police.
Both Jenkins and Ehrlick are accused of misleading Boise police for almost two weeks before Robert's body was found in an irrigation canal near Kuna almost two weeks later.