Los Angeles News

LOS ANGELES (CBS) ― A Los Angeles judge reversed course Tuesday and decided that prosecutors cannot proceed with a murder case against a USC student whose newborn son was found dead in a trash bin near the university in October 2005.

Los Angeles Superior Court Judge Samuel Mayerson had tentatively denied the defense's request Monday to dismiss the murder charge against Holly Ashcraft, 22, but he changed his mind Tuesday. Deputy District Attorney Franco Baratta said he planned to appeal the judge's decision to throw out the murder charge.

In making his decision, Mayerson agreed with the defense's contention that prosecutors had reached the maximum number of dismissals in the case, two, allowable under state law.

The murder charge against Holly Ashcraft was first dismissed in March, with Los Angeles Superior Court Judge David Wesley ruling that the evidence supported only the lesser charge of involuntary manslaughter. Baratta asked to have the entire case dismissed, and quickly re-filed the murder charge.

"The dismissal (of the involuntary manslaughter charge) is dismissal number two in this case," Mayerson said in granting defense attorney Mark Geragos' motion to drop the murder charge.

Ashcraft, who is free on $200,000 bail, hugged her lawyer after the judge's ruling.

"We've had the murder charge dismissed. We've had the DA stand up and dismiss the involuntary (manslaughter). We've had a second judge dismiss the murder charge. I think three bites at the apple is enough," Geragos told reporters after the hearing.

Ashcraft's attorney noted that although the dismissed murder and involuntary manslaughter counts were technically different charges, they involved the "same underlying facts" and accounted for the two allowable charges that can be dismissed in a case.

Baratta disagreed, telling Mayerson that he considered Wesley's ruling that the case supported only an involuntary manslaughter charge to be an "invitation" for the prosecution to file that charge.

"It is still not a charge until we decide it's a charge," Baratta said. Citing a minute order of Wesley's ruling, Mayerson said his interpretation was that the judge had ordered Ashcraft to stand trial on the involuntary manslaughter charge. Mayerson noted that it was "not advisory," but "an order."

"The D.A.'s indicated that they're going to take a writ to the appellate court, so I expect we'll be at the Court of Appeal at some point. But, for right now, we're just gonna relish the victory," Geragos told reporters.

Mayerson also agreed to the defense's request to relax the terms of Ashcraft's electronic monitoring by allowing her to be away from home between 9 a.m. and 5 p.m. "... Obviously, she can go out and she can enjoy herself a little bit finally," Geragos said after the hearing. "It's been quite an ordeal for all this time."

Ashcraft, a Billings, Mont., native, is due back at the downtown Los Angeles courthouse on June 27. She is still awaiting a hearing to determine if there is enough evidence to require her to stand trial on a child abuse charge.

Prosecutors contend the baby, whose body was found by a homeless man sifting through a trash bin behind a bar-restaurant that is a popular hangout for USC students, was born alive.

Geragos has countered that there was no evidence Ashcraft knew she was pregnant or that the baby had been born alive.

Ashcraft was first investigated by police in April 2004, when she arrived bleeding at a downtown hospital and doctors determined she had given birth.

She claimed she had given birth to a stillborn, but the baby's body was never found and she was never arrested or charged in connection with that infant.

Ashcraft was suspended from USC pending the outcome of the case, according to her attorney.

(© 2007 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)