The wrangling between prosecutors and defense attorneys representing Markus Kaarma became increasingly contentious Tuesday afternoon, as they waded through multiple motions and hashed out what would be admissible during the Missoula man's upcoming trial.
Kaarma stands accused of murdering German exchange student Diren Dede, who entered Kaarma's garage shortly after midnight April 27, ostensibly looking for alcohol.
His friend Robby Pazmino – who was also discussed at length during Tuesday's hearing – was waiting outside the garage when Kaarma fired the fatal shots at Dede.
Prosecutors allege Kaarma set a trap for would-be burglars and baited Dede inside. But Kaarma's defense team, lead by Paul Ryan, argues the shooting was self-defense – a split-second decision to protect his family.
Among the issues brought before Missoula County District Judge Ed McLean on Tuesday, Kaarma's attorneys repeatedly revisited their theory that Dede was not simply a teen who was "garage-hopping," but in actuality part of a band of teens who participated in organized burglaries.
Lisa Kauffman, one of Kaarma's five attorneys, noted the defense had evidence of other teens waiting in the area on April 27 and even a "pickup" car. She argued that access to some of the teens' phones would prove they were in constant contact and often used the phones as "walkie-talkies" while they participated in burglaries that night.
She listed specific investigative deficiencies of Missoula police, including the fact the defense team didn't have access to Dede's computer and a surveillance video that was deemed unimportant by detectives.
Further, she argued Pazmino, an Ecuadorian exchange student who left the country a week after the incident, would have the evidence of the alleged criminal activity on his phone. That phone left the country with Pazmino.
The state's lead prosecutor, Andrew Paul, said that was "nothing but a fishing expedition," and contended there was nothing of evidentiary value in the items the defense wished to examine.
Further, he said the defense had access to Dede's phone and sent it to an expert witness who told them he couldn't analyze it.
Pazmino's potential presence and testimony at the trial continues to be a source of contention, and Kaarma's attorneys criticized the state's alleged failure to call Pazmino as a witness.
Deputy County Attorney Jen Clark said the teenager was in the process of getting his visa to come to the United States with his attorney, but it was unclear Tuesday whether Pazmino will be able to arrive in time for the trial.
After much back and forth, McLean ruled that he would allow the testimony of a Missoula police officer who apparently told Janelle Pflager, Kaarma's wife, that if a burglar entered her home, she would shoot him.
Brian Smith, one of the defense attorneys, clarified with the judge saying the officer made the statement before the April 27 incident that resulted in Dede's death.
"I don't know why we are having this argument. Mr. Smith wasn't there for the interview," prosecutor Karla Painter said. "I was."
Painter argued that Pflager didn't communicate that conversation with her husband, but Smith said the conversation contributed to the overall feeling in the house.
Kaarma's alleged marijuana use also will be inadmissible in court, McLean ruled. Burglars previously had taken marijuana and paraphernalia from the family's garage.
Earlier in the day, McLean seated a jury of eight women and four men, who will ultimately decide if Kaarma's actions were a justifiable use of force.
Prosecutors and the defense team additionally selected three alternate jurors, one woman and two men, before McLean dismissed the 15 jurors until 8:30 a.m. Thursday, when opening statements are scheduled to begin.
Dede was a junior at Big Sky High School and spent almost a full school year in Missoula away from his home in Hamburg, Germany.
His shooting has sparked international outrage and several reporters from major German media outlets were in the courtroom Tuesday covering the trial, including reporters from Der Spiegel, German national public radio, ARD and Sueddeutsche Zeitung.
Dede's parents, Celal and Gulcin, arrived in Missoula last week and were present in the courtroom Monday and Tuesday. They are accompanied by two prominent German attorneys, Andreas Thiel and Bernhard Docke.
Docke said he doesn't know if the family will file a civil lawsuit against Kaarma, but indicated that in Germany, Kaarma's actions wouldn't be considered self-defense if the evidence supports what has been reported by law enforcement and prosecutors.
In conclusion to voir dire Tuesday morning, McLean instructed the jurors not to discuss the case with friends or family, not to conduct their own investigation, and to stay away from media coverage of the case.
"We have to make certain that Mr. Kaarma gets his fair day in court and the way to do that is not to listen to any extraneous material," McLean said.