Fitial’s court-appointed defense attorney Joseph James Norita Camacho filed their fourth motion on Sunday.
Fitial, 25, is asking to be released to his mother and his common-law wife as third party custodians.
Camacho said his client can be placed on house arrest with an electronic monitoring device.
The mother and common-law wife have been interviewed by the U.S. Probation Office and found to be suitable as Fitial’s third party custodians, Camacho said.
He said the proposed house where Fitial will be staying has also been found suitable after a visit by the Federal Probation Office.
“The FBI laboratory concluded that defendant Fitial and the alleged victim can be excluded as being the source of the hair obtained from the defendant’s vehicle,” Camacho said.
“These test results call into question the strength of the government’s case as to count three (enticement of a minor),” Camacho added.
He reiterated that his client is “not a danger” to the community.
If his client is released to the custody of the proposed third party custodians, Camacho said he will have more access to and more time with Fitial in preparing for the case.
Camacho also noted that the jury trial for Fitial has been moved four times.
He said he learned from the prosecution that a judge may not be available in April to preside over the jury trial.
The trial may be moved again, he added.
Camacho said “only a couple of hours” in the morning and in the afternoon “are the window of opportunity to meet with [Fitial] to prepare for trial.”
He noted that there were only two available contact rooms at the Department of Corrections facility.
Fitial has denied the charges against him: two counts of deprivation of rights under color of law and one count of enticement of a minor who was a ward at the Kagman juvenile detention and correctional facility.
Fitial also denied charges of five counts of sexual abuse of a minor in the second degree, two counts of exploitation of a minor, assault and battery, misconduct in office, failure to report child abuse or neglect, and sexual servitude of a minor that were filed by the Attorney General’s
Office in Superior Court.
Fitial has been in the custody of the U.S. Marshals Service and detained at the Corrections facility after federal agents arrested him on June 11, 2010.
No bail was set for him.
