RENO - As prosecutors try to resurrect some of the charges dismissed against three men accused in the 1998 killing of a wild horse, an attorney for one of the defendants said there may be a basis to drop the final charge.
Scott Freeman, who represents Anthony Merlino, said Wednesday there's new reason to believe the final gross misdemeanor charge might be dropped because the district attorney's office mistakenly cited it as a felony.
Storey County District Attorney Janet Hess refused to comment on whether the charge was filed accurately or whether she feared it might be dismissed.
Hess said she filed notice that she intends to appeal Judge Michael Griffin's decision to dismiss all but the one remaining charge of killing a horse.
The three former high school buddies, set to go to trial Nov. 1, once stood accused of slaughtering as many as 33 mustangs with high-powered rifles in the hills just east of Reno, a mile south of Interstate 80.
''We're appealing some of the horses that were dismissed,'' Hess said Wednesday. ''We are appealing the number of horses because we believe we will succeed in the merits.''
Former Lance Cpls. Scott Brendle and Darien Brock, and Merlino, their former Wooster High friend, were arrested in January 1999 after the horse carcasses were discovered in the days after Christmas 1998.
The shootings prompted international outrage and resulted in the equivalent of dishonorable discharges for Brendle and Brock.
Griffin earlier this month ordered a rare change of venue for a criminal case in Nevada, sending the case from Virginia City to Carson City for trial.
But Freeman said the defense might request another change of venue. In the meantime, defense attorneys are seeking dismissal of the final charge based on an alleged filing error by assistant district attorney Sharon Claassen.
''Because the state has decided to appeal, the defense has decided to have the Supreme Court take another look at whether or not the last charge should have been dismissed,'' Freeman said.
''A mistake was made in the filing. The judge made the charge a gross misdemeanor. But Ms. Claassen charged it mistakenly as a felony,'' he said.
Hess said she has 30 days from when she filed the notice of intent to appeal on April 21 to outline specifics about why some charges should be reinstated. The final gross misdemeanor charge carries a penalty of up to one year in the county jail and a fine of up to $2,000.