Scarber's attorney slings dirt to get new trial

FRESNO, Calif.

But is it sound defense or an elaborate distraction? Scarber was set to be sentenced to prison Friday -- two months after his disappearance to Mexico ended -- but the case was delayed again when he brought in a new attorney.

The defense has turned this into a case of sex, lies and videotape. They made shocking claims Friday, targeting the district attorney and the sheriff.

Spencer Scarber's return to Fresno brought a change in attorneys and a change in strategy. His previous attorney, Antonio Alvarez, saved Scarber as much as 40 years in prison in his rape case, despite DNA evidence a taped confession, and a client who disappeared when he was supposed to testify.

His new attorney, Charles Magill, says Alvarez didn't do a good job, and he wants a new trial.

"How do you overcome DNA evidence that puts Spencer on the victim and the victim on Spencer and a taped confession that Spencer made?" an Action News reporter asked Magill. "How do you overcome that when you're asking for a new trial in a case where he also fled?"

"How do you overcome the fact that he was kidnapped and beaten and assaulted and threatened and made a statement about his involvement after being beaten?" Magill responded.

Photos acquired by Action News show how Scarber looked right after that alleged attack. You can see blood on his shirt, but investigators saw no serious injuries and Scarber refused medical treatment.

Still, Magill rattled off several other problems he saw with the original case: a lack of witnesses called, the possibility of consensual sex, and even a very old affair between Spencer's father and district attorney Elizabeth Egan.

The DA's office gave Action News this statement in response:

"For a brief period in the 1990s, while the district attorney was single, she was in a relationship with a member of defendant Scarber's family. This past relationship has no bearing on the case. "

It's actually been the attorney general's office prosecuting the case, not the district attorney's.

Magill also says the sheriff's office should've let someone else investigate the rape because Kyle Scarber was discussing a run for sheriff in 2014 against Margaret Mims.

When Action News asked the sheriff about the accusation, she called it "just another strange twist in a very interesting and intriguing investigation."

ABC30 legal analyst Tony Capozzi is also our political analyst. He says a Scarber run for sheriff would've been a huge longshot. And as far as Spencer's legal case is concerned, Capozzi says Magill's accusations are nothing more than a distraction from the facts.

"Trial lawyers are taught when you're in law school, 'If you have the law on your side, you argue the law. If you have the facts on your side, you argue the facts. If you don't have either one, blow smoke. And you're seeing a lot of smoke here,'" Capozzi said.

He says the bottom line is that most of these claims are irrelevant and will not be allowed in court.

But Magill has succeeded in at least delaying Scarber's sentencing. It's now postponed until at least may and probably later.

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