A Mecklenburg judge ruled Tuesday that Demeatrius Montgomery should not face the death penalty because a detective’s misconduct has tainted the trial in the killings of two Charlotte police officers.

But Superior Court Judge Forrest Bridges allowed the trial to continue, rejecting a request by Montgomery’s attorneys to dismiss the murder charges entirely.

Bridges called the case a “moving target.” He said former police Detective Arvin Fant’s admission that he threw away and plagiarized notes has “placed a cloud of suspicion over these proceedings.”

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Montgomery is charged in the 2007 killings of Charlotte-Mecklenburg Police officers Jeff Shelton and Sean Clark.

As Montgomery left the courtroom Tuesday, in an orange jail uniform and shackles, he looked at his family and smiled–his first flash of emotion in two days of court proceedings. His grandmother wiped tears from her eyes after the judge ruled.

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Fant, a former military police officer who has been with CMPD for 12 years, has been placed on administrative leave and the department is investigating. He lost his detective title on Saturday. He could lose his job and face criminal charges, Police Chief Rodney Monroe said.

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Monroe said he doesn’t believe Fant was attempting to manufacture evidence but simply did sloppy police work. Fant was assigned to the case hours after Shelton and Clark were shot at an east Charlotte apartment complex.

In testimony Monday, Fant admitted he threw away some investigative notes and rewrote other inadequate notes by using his colleagues’ documentation of the case. He said he copied and pasted another officer’s notes into documents he later submitted as his own.

On Tuesday, Fant added another surprise. Minutes before trial, he phoned his supervisors and suggested they retrieve a box of files near his desk. He hasn’t been allowed in the office. But the files, he explained, might contain some of his original case notes.

Detectives brought the box to court soon after Tuesday’s proceedings began and said it contained little about the case, other than a mention of sympathy cards sent to the Shelton family.

Montgomery’s lawyers argue that Fant’s revelation Tuesday indicates such disorganization and disregard for evidence rules that the whole investigation is tainted.

They say Fant’s actions violate N.C. laws that require sharing of evidence before a trial. They say Fant’s handling of evidence also became an issue in a 2003 robbery conviction that was appealed, but upheld.

Fant’s missing notes in the Montgomery case could be important, his attorneys argue.

“Nothing for us could be more material than a witness who says Mr. Montgomery is not responsible for the deaths of Jeff Shelton and Sean Clark,” said attorney Duane Bryant.

But Fant and prosecutors have asserted he didn’t discard anything that would benefit Montgomery’s case. His missing notes simply documented interviews that were also recorded on video or audiotape, prosecutors said, so no evidence has actually been lost.

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Detective in Police Shooting Case Had Prior Evidence Problems

Ely Portillo, Charlotte Observer, August 25, 2010

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Arvin Fant was the lead investigator in a 2003 Charlotte armed robbery case against Muhummad Jaaber, who was convicted of breaking and entering and four counts of armed robbery.

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In the 2003 case, Jaaber had been accused of breaking into a house and robbing several people inside with a handgun, taking more than $1,500 in cash.

But he appealed his conviction because Fant could not produce two statements that witnesses testified they had provided to police.

The two witnesses said they had been interviewed by officers shortly after the crime. One came from a victim who could not identify Jaaber as his assailant, the other from a woman who owned the house where the robbery occurred but wasn’t home at the time.

Jaaber’s attorneys requested copies of the two statements before the trial, but Fant couldn’t find them, court records show. Fant told the N.C. Court of Appeals he searched everywhere he could, including the complete case file at the Charlotte-Mecklenburg police department’s records office.

Fant also questioned officers who might have taken the statements, but they found nothing, either. Officials told the court one statement had been lost and the other one probably wasn’t ever written down, even though the witness testified she had been interviewed.

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Jaaber is projected to be released from prison in 2014.

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