The Alaska Court of Appeals has opened the door for a murderer to use his victim’s possible medical records as part of a defense in a potential new trial.

James Marquez was sentenced to serve 75 years for fatally shooting his girlfriend in the head during an April 9, 2012 argument in their Spenard apartment. His defense was that he killed Carla Webb in the heat of passion after she told him she’d aborted their child, a theory that would make him guilty of manslaughter instead of murder.

Marquez appealed his first- and second-degree murder convictions. He said Anchorage Superior Court Judge Jack Smith should not have denied his pretrial request for Webb’s doctors to provide copies of records that would show whether she had an abortion.

The issue, Smith said when denying the motion, was secrecy, because Marquez wanted the records given to just the defense, rather than to the court, so prosecutors wouldn’t be alerted to his planned heat-of-passion defense.

In its original decision, the appeals court said Marquez and his attorney could make the request again, if they did so openly.

Marquez then appealed that decision to the Alaska Supreme Court, which ruled Marquez’s confidential request did not need to be made openly and could still stand. The supreme court sent the issue back to the appeals court in May of this year, directing it to determine how to proceed with the request. 

In its decision released Wednesday, the appeals court said it cannot resolve the issue and sent it back down to the superior court with additional instructions about the medical records: if they exist, the superior court can review them in camera — meaning a judge would privately look at the records and decide what, if any, information can be used in court.

“If the records exist, and if (after its in camera review) the superior court determines that some or all of these records are relevant to Marquez’s heat of passion defense, the court shall disclose the relevant records to the parties,” the appeals court’s decision reads.

The superior court could then let the prosecution and defense argue whether Marquez should get a new trial.

The superior court has 120 days from Sept. 11 — the date of the appeals court’s decision — to hold the proceedings and resolve the issue or request an extension.

A second part of Marquez’s case that the supreme court directed the appeals court to consider was how the prosecutor defined the term “serious provocation,” a requirement for a heat-of-passion defense.

Marquez said the prosecutor's statements constituted “plain error" and violated his right to a fair trial. 

In its decision, the appeals court rejected that claim, saying the jury was correctly informed about “serious provocation” and was also instructed to disregard a lawyer’s arguments if they depart from the facts or from the law.

“Thus, even though the prosecutor’s remarks, taken in isolation, might potentially have misled the jurors regarding the element of ‘serious provocation,’ did not result in a violation of Marquez’s constitutional rights,” the decision reads.

Marquez’s scheduled release date is April 8, 2062.

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