UPDATED | June 9, 2016 7:30 PM
FORT WORTH (CBSDFW.COM) – The attorney for the 21-year-old man a Grand Jury declined to indict on attempted capital murder charges stemming from the shooting of Fort Worth police officer Matthew Pearce wants his client released from jail.
Attorney Brian Walker represents Ed McIver Junior.
McIver Jr. and his father ran from police as officer’s tried to pull over and arrest Ed McIver Sr. in March 2016. His father was shot and killed in a shootout with police after authorities said McIver Sr. fired shots at officer Pearce.
Walker asked a judge Thursday afternoon to consider releasing McIver Jr. from jail. He isn’t happy the Tarrant County DA’s office re-filed charges of attempted capital murder and drug possession right after a Grand Jury decided not to indict his client in the shooting.
“The sheriff is holding him there I believe illegally,” Walker told the judge Thursday afternoon.
The jail has housed McIver Jr. since March 15 on a $2 million bond.
In court the judge set a hearing in McIver Jr.’s case for 9 a.m. Monday.
Walker filed court papers asking for an examining trial, essentially trying to determine if there’s probable cause to continue holding McIver Jr. in jail.
“If an individual has not been indicted, then we have a right to have the court determine if there’s probable cause. And if there’s not probable cause, then order the sheriff to release the individual on the charges,” said Walker.
He said ballistics tests show McIver Jr. didn’t fire either of the two weapons found near him the day of the shootout.
“There’s no evidence whatsoever that showed those weapons were ever fired, nor were there any shell casings at the scene anywhere that matched the weapons. So we can conclude those weapons were not fired at all,” said Walker.
Tarrant County District Attorney Sharen Wilson’s office quickly re-filed the same charges against McIver Jr. Wednesday; something Walker considers unfair.
“Anything the DA’s office in my opinion is doing right now is to try to prosecute Ed McIver Jr. for attempted capital murder is them reaching at straws, that’s it,” said Walker.
“They don’t have evidence that he directly fired at the officer. They’re going to have to have some evidence that proves that he was an accomplice to his father, that he assisted him in someway in that particular criminal act,” said former chief of the felony trial division at the Dallas County DA’s office, Toby Shook.
Shook said the Tarrant County DA’s decision is legal, but rarely used.
“It was our practice, if a case was no billed by a grand jury, you didn’t re-submit that case unless you had new evidence generally,” said Shook.
During a press conference, a spokesman with the Fort Worth police department expressed disappointment with the Grand Jury’s decision not to indict McIver Jr., going so far as to say “disappointment” was an understatement.
“I think this is a very emotional case and they want to hold everyone responsible. This officer is very brave, very courageous, and against all odds survived. He’s a hero and you want anyone associated with it held accountable. So I think that’s why they’re pressing this,” said Shook.
Wilson didn’t comment but her office said they believe strongly the case should be prosecuted.
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