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Associated Press, Published August 30 2013

Prosecutor not sure of next step in ND murder case

FARGO — A North Dakota prosecutor said Friday that he is considering pressing charges again against a man whose murder conviction was overturned by the state Supreme Court.

The ruling issued Thursday gives the state authority to charge Cody Borner with another crime, but prosecutor Ladd Erickson said he's still analyzing the decision that sparked three justices, including one dissenter, to weigh in on the opinion.

"We're going to analyze this case," Erickson said. "Obviously there are going to have to be changes from how it was charged before."

A message left Friday for Michael Hoffman, Borner's attorney, was not returned.

A jury last summer found Borner, of Stanton, and Richard Whitman, of Hazen, guilty of two counts each of conspiracy to commit murder in the shooting death of Mike Padilla, of Billings, Mont., on Jan. 31, 2012. Prosecutors said a dispute over money and drugs led to the shooting.

Borner was sentenced to 20 years in prison.

Hoffman, the defense attorney, argued to the Supreme Court that the law required the state to show Borner intended to cause death. The state countered that a defendant may be found guilty of conspiracy to commit murder if the circumstances show indifference to the value of human life.

The justices, in a 4-1 decision, said Borner was accused of a crime that was not defined in North Dakota law.

"We cannot imagine a greater error affecting a defendant's substantial rights than when a defendant is convicted of conduct that is not a criminal offense under our law," wrote Justice Mary Muehlen Maring.

Justice Dale Sandstrom said in his dissent that there was no "obvious injustice" and a reversal carries a higher burden.

"By their own testimony, they either explicitly or implicitly conspired to commit felony robbery that resulted in death," Sandstrom wrote, referring to Borner and Whitman. "There is no previously established, clear North Dakota law that conspiracy to commit murder under these circumstances is not a crime."

Erickson said the high court ruling in effect changed the statute from what it was when the case was charged.

"We're analyzing the new law that the Supreme Court created and the facts of the case to see where we're at," he said.

Whitman is serving a life prison sentence.

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