steve.dick@heraldbulleitn.com

The Indiana Court of Appeals has given the state 128 days to retry Rex Delph for two counts of murder, Class A felony arson resulting in bodily injury and two counts of felony murder, and Madison County Prosecutor Tom Broderick said his office would proceed promptly.

On Dec. 6, 2006, Judge Fredrick Spencer of Madison Circuit Court dismissed all charges against Delph, claiming the state took 429 days to bring the defendant to trial. The appellate opinion lists numerous continuances in the trial of Delph.

Delph, Anderson, was arrested in June 2004. His wife, Robynn, and their 9-year-old son Joshua died in a fire in the couple’s home, 1307 W. Second St.

Delph had sought the dismissal based on Criminal Rule 4(C), which states: “No person shall be held on recognizance or otherwise to answer a criminal charge for a period ... embracing more than one year from the date the criminal charge is filed or from the date of his arrest on such charge, whichever is later; except where a continuance is had on his motion or the delay was caused by his act or where there was not sufficient time to try him due to court congestion.”

According to a Herald Bulletin article at the time, Spencer said many of the continuances were because the prosecutor’s office failed to share evidence from the investigation. Delph’s attorney, Zaki Ali, was searching for two oil lamps found in Delph’s home. Ali, according to previous reports, wanted an expert to examine the lamps. It took two months to find the lamps in custody of the Anderson Fire Department, according to the Court of Appeals opinion.

The appellate court sought to break down the number of days that could be charged to the state and days charged to Delph to determine if the case violated Criminal Rule 4(C).

In the ruling, of the 429 noted by Spencer, 237 days were attributed to the state with the remainder to Delph. That means the state has 128 days to retry Delph.

“That’s not a great deal of time, if there are no other delays,” said Broderick.

“I will ask the judge Monday to set a trial date (in that time period). It will give us time to be prepared and look over evidence.”

Broderick said delays could come if Delph would request another look by the appellate court. Delph has 30 days to do so. Another 30 days could be added if, after another appellate review, Delph decided to transfer the case to the Indiana Supreme Court, according to Broderick.

Also, according to the prosecutor, Ali may have been a public defender for Delph and a new public defender could be put on the case. Broderick said he wasn’t sure whether Ali served as public defender for Delph or hired counsel.

Numerous messages were left at Ali’s cell phone number Friday but not returned.

“We’ll go forward and get this case resolved,” said Broderick.