The attorney general of North Carolina in the US is to appeal a decision to allow a retrial of the convicted killers of Irish man Jason Corbett.

Legal papers were filed with the State’s Supreme Court on Friday formally requesting a stay on the decision by the court of appeals earlier this month.

Mr Corbett (39), a Limerick father-of-two died from head injuries after a sustained assault with a brick and a baseball bat at his family home in the town of Wallburg.

Molly Martens, his second wife, and her father, former FBI agent Thomas Martens were convicted of second-degree murder at 2017 trial. This month they successfully won an appeal seeking a retrial.

Mr Martens (69) had argued that it was “unfair” to block him entering specific statements in support of his claim he had been acting in self-defence during the incident in which Mr Corbett was killed.

The case was due to return to Davidson County Superior Court on February 24th although prosecutors had 15 days from that date to lodge a petition to appeal the ruling.

In papers filed on Friday, seen by The Irish Times, attorney general Joshua Stein signalled his intention to do exactly that.

“The State intends to timely file a notice of appeal as of right . . . based on Judge Collins’ dissent within fifteen days of the Court of Appeals’ mandate,” they said.

“Issuance of [a writ] is needed to stay enforcement of the judgment and mandate of the Court of Appeals pending this Court’s consideration of the State’s appeal.”

Mr Stein’s office said it was continuing to review the court of appeal decision in order to determine its next steps.

The indications of a potential appeal should be of comfort to Mr Corbett’s family in Limerick who had previously said the decision to allow a retrial had come as a shock.

Molly and Thomas Martens are serving 20 to 25 year sentences and will remain in prison pending the potential appeal.

In its ruling the court of appeal had found that due to “compounding evidentiary and instructional errors” both before and during the three-week criminal trial, Mr Martens and his daughter were “prevented from presenting a meaningful defence or from receiving the full benefit of their claims of self-defence and defence of a family member.”

“As a result, the jury was denied critical evidence and rendered incapable of performing its constitutional function.”

Not a fair trial

A Corbett family spokesperson said: “In essence [this] is a motion to temporarily halt the effect of the opinion of the appeals court decision on the 4th February 2020.

“In the absence of a temporary stay being granted, Molly Martens and her Father would be entitled to proceed to trial court.

“The Attorney General intends to file a notice of appeal to the Supreme Court based on Judge Collins’ dissent within fifteen days of the Court of Appeals’ mandate.

“We are grateful for his decision. Thank you for your continued support.”

The Court of Appeals made their ruling just under three weeks ago.

Lawyers for the pair said they did not get a fair trial, held in July and August 2017, and that the trial judge had excluded critical evidence in their case.

In their appeal, lawyers for Molly and Thomas Martens argued that the judge in the case had excluded key evidence that would have corroborated their client’s claims.

This included information which they said might have explained Thomas Martens’ state of mind on the night of the murder.

They argued that statements Mr Corbett’s children had given to social workers should have been allowed as evidence.

The three judges, In the Court of Appeal ruling, described its ruling as “deceptively simple”, boiling down to whether the defendants lawfully used deadly force to defend themselves and each other during the tragic altercation with Mr Corbett.

“Having thoroughly reviewed the record and transcript, it is evident that this is the rare case in which certain evidentiary errors, alone and in the aggregate, were so prejudicial as to inhibit defendants’ ability to present a full and meaningful defence,” the court ruled.

The judges also found that “the trial court erred in instructing the jury on the aggressor doctrine as to Tom, given the absence of evidence to support such an instruction”.

‘Complete confidence’

Speaking from the US on Friday, Mr Earnest, an uncle of Ms Martens and family spokesperson explained that legally it can take two to three weeks before the ruling is “mandated” made fully legal (this has not now been allowed to happen due to the Attorney General’s intervention).

“After that period of time the ruling can be appealed to the Supreme Court of North Carolina by the other side.

“The Supreme Court can decide to uphold the original second degree murder charge or allow the retrial if an appeal is made. It is unusual for a retrial not to be allowed.

“We don’t know if Tom and Molly will be released at some stage on bail if the Court of Appeal ruling is referred to the Supreme Court.

“But we as a family have complete confidence in the Appeal Court ruling as they spent an incredibly long time over their deliberations.

“We as a family had this naive expectation that the truth would be told fairly for our family. We know very little so far now about what the Attorney General is going to do next.”

He added that he has been able to visit his niece but not his brother-in-law. “Molly is doing as well as anyone would could knowing that she is innocent and did not carry out a crime she is convicted of.

“We have always had faith in the law and we had been thankful it has found in our family’s favour by the Court of Appeals.”

A hour-long CBS documentary, aired last April in the US, on Mr Corbett’s killing entitled, In the Name of Jason, revealed that key evidence was allegedly not put before the jury which convicted them resulting in the potential for a new murder trial.

Ms Martens was Mr Corbett’s second wife and the couple met when the American woman worked as a nanny in his Co Limerick home. Mr Corbett’s first wife Mags Fitzpatrick died of an asthma attack in 2006.

When Sarah was four-years-old she moved to America with her father Jason and brother Jack then six-years-old to begin a new life.