Sidney Jacobs flashes a glance at a FOX5 camera as the judge reconsidered sending his case to trial
HENDERSON, NV (FOX5) -
A legal technicality may set a Henderson man free in what prosecutors firmly believe is a case of child abuse.
Henderson Justice Court Judge David Gibson heard testimony Wednesday morning during a preliminary hearing for Sidney Jacobs, whose home became the scene of a deadly shooting that left a 5-year-old boy dead.
Prosecutors charged Jacobs with child abuse causing substantial bodily harm, but his attorney argued that is not the proper charge to be applied.
"The child abuse statute was inappropriately being used to prosecute Sidney Jacobs, and at this point in time, the court tends to agree. And it's the truth and that's the law," said Robert Draskovich.
The case began when 5-year-old Bobby Martin's life was cut short on Sept. 25, 2011. While playing with his then 11-year-old uncle, the older boy discovered a gun and shot Bobby in the chest. For the first time, Bobby's uncle, now 13, told the court what happened.
"I found it in a cardboard box labeled ‘treasure box'," the boy testified. A prosecutor asked: "And where was that box?" The boy replied: "It was on the shelves in the back of the room."
The 13-year-old, whose name FOX5 is withholding, said he thought the gun was fake.
"I was in shock. I tried not to think that he was shot - I thought he was playing dead," he said.
Bobby Martin's mother also testified in court Wednesday. She was upstairs when her son was shot by her younger brother.
"He was panicking and told me to come downstairs right away - right now, and that Bobby had been shot by a real gun," Cristin Wacaser recalled.
Draskovich told the judge that, because the shooting was accidental and didn't happen to Jacobs' own child, that the child abuse statute does not apply.
The suggestion led to a back-and-forth between both sides, and several moments of silent thought by Judge Gibson.
"That struck us as a bit odd," said special prosecutor Chip Siegel. "That's certainly an interpretation, and we want to find out exactly what the law states about this unique issue."
The judge asked for more time and for both parties to return in April.
"What we have is a legal technicality, as you would say," Siegel mentioned outside the courtroom.
Draskovich admitted there is clear civil liability on his client's behalf, but contends it was not criminal.
If the case is ultimately dismissed, prosecutors could choose to file charges under a different crime.
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