A judge is considering whether to dismiss an indictment of first-degree murder against ex-Arizona State University tailback Loren Wade.
Wade’s attorney, Ulises Ferragut, argued in Maricopa County Superior Court on Friday that the indictment should be tossed because the state gave an unfair presentation of the case to the grand jury April 5.
Ferragut said the state mischaracterized witness statements and failed to disclose evidence that was "clearly" favorable to Wade, who claimed he accidentally shot former ASU defensive back Brandon Falkner. In addition, Ferragut said, the grand jury should have had the option of returning the less severe charges of manslaughter or negligent homicide because evidence shows the shooting was an accident.
Wade shot and killed Falkner outside Coyote Bay Night Club in Scottsdale March 26 when Wade got angry about Falkner speaking with his girlfriend, police said.
Ferragut said Scottsdale detective Todd Larson testified that witnesses saw Wade walk up and shoot Falkner as he sat in his car, when they actually said he took a swing or hit him in the head before the gun went off, which would be consistent with Wade’s story.
Prosecutor Catherine Hughes said the grand jury based its decision on the statements of the three witnesses who had the best view of what happened — the three men in the car with Falkner when he was shot.
She said each witness reported either hearing or seeing Wade put a bullet into the chamber of his semiautomatic .38-caliber handgun as he approached Falkner in the parking lot of the nightclub.
"That’s the crux of the intentional and premeditated conduct," Hughes said. Firstdegree murder requires premeditation.
She said the panel had the option of returning a charge of second-degree murder, but still voted 13-0 to bring the most serious charge.
But Ferragut said that even though it was not known at the time of the grand jury proceeding, investigators have since found out the gun had a history of malfunctioning and could be fired with the safety on.
And that, he said, supports Wade’s claim that the gun went off when he tried to punch Falkner with it in his hand.
Judge Douglas Rayes did not indicate when he would rule.