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Attorney says he can prove Fraga's innocence

WORTHINGTON -- Public Defender Cecil Naatz filed a motion asking Judge Timothy Connell to dismiss the first-degree murder indictment against his client, Josue Robles Fraga, stating certain evidence was not disclosed to the grand jury but inadmissible evidence was.

Assistant Attorney General Bill Klumpp filed paperwork of his own during Tuesday's omnibus hearing, handing the judge a notice of evidence of additional offenses to be offered at trial. The notice claims that Fraga, between March 2002 and March 2008, engaged in sexual contact with a child with whom he has a significant relationship -- a different child than the one he is accused of sexually assaulting and killing.

Fraga was taken into custody in March 2008, just days after bringing his unconscious and unresponsive 2-year-old niece Samantha to the hospital, where she was later declared dead. Autopsy evidence shows Samantha died of a head injury, but also had multiple contusions on her legs and arms, a tear in the wall of her stomach and had acute injuries to her genital area and anus.

When Samantha was brought to the hospital, she had a core body temperature of 84 degrees, which led the autopsy physician to state she had been dead for four to eight hours before being brought to the hospital by Fraga and his wife.

Naatz claims that DNA evidence from the Minnesota Bureau of Criminal Apprehension (BCA) that excludes Fraga as the source of semen found on Samantha's diaper should have been available for the grand jury to consider.

"We believe we have major evidence that shows Mr. Fraga is innocent," Naatz told the Daily Globe last week. "We think this is the type of evidence that may have influenced the grand jury."

Klumpp told the judge the exclusion of Fraga as a contributor to the semen found on the diaper is a mischaracterization of the evidence. He said negative tests for semen on specific areas of the girl's body prompted the prosecution to believe she was sexually assaulted with an object.

Because of the damage done to her body, the autopsy doctor believed the child would have had no bowel control, Klumpp said. Yet, at the crime scene, investigators found no dirty diapers in the house or the outdoor garbage cans -- a fact he finds significant.

"He had more than ample opportunity to destroy evidence," Klumpp stated.

Klumpp contended that the lack of Fraga's DNA on the diaper does not mean Fraga did not commit the crime. Naatz disagreed, stating the only evidence the state has is that Fraga was the only adult male in the house. Because Fraga left at approximately 2:30 a.m. to pick up his wife from work, Naatz believes anyone could have come into the house in the short time he was away.

Connell will make a decision on the motion after written arguments have been submitted. He will also make a decision on the motion regarding the admissibility of evidence of flight, which was presented to the grand jury. After those decisions are made, Naatz asked the judge to consider reducing Fraga's bail amount, which is currently set at $750,000 with conditions are $1 million without conditions.

"The court's decision on the other matters could affect whether he is released or bail reduced," Naatz told the judge. "You could consider releasing him on his own recognizance or lowering the bail."