shawn.mcgrath@heraldbulletin.com

An attorney for Rex David Delph said Tuesday he is “99 percent certain” he will ask either that the Indiana Court of Appeals to review its ruling giving prosecutors 128 days to try the accused double murderer or that a higher court review the decision.

Indianapolis attorney Joseph M. Cleary said he’d likely either ask the Indiana Court of Appeals to review its ruling or file a petition seeking the appeals courts decision be transferred to the Indiana Supreme Court for its review.

“It’s probably 99 percent certain we’ll be doing one of those things, but I don’t which,” Cleary said.

The appeals court ruled on Friday that the Madison County Prosecutor’s Office has 128 days to try Delph on charges he intentionally set the May 2004 fire that killed his wife and son.

Madison Circuit Court Judge Fredrick Spencer tossed out the charges against Delph in December, ruling that prosecutors took too long to bring Delph to trial. In general, prosecutors have a year from when charges are filed to put the defendant on trial. The appeals court’s ruling effectively reinstated the charges against Delph.

Cleary said he last spoke to Delph on Monday. But citing attorney-client privilege, he declined to say how Delph wanted to proceed with the case against him. He could not be reached for comment.

“He was disappointed (by the appeals courts’ ruling), but he understands we’re going to press on,” Cleary said.

Madison County Prosecutor Thomas Broderick Jr., who took office a month after Spencer dismissed the charges, said he plans on filing a motion in the coming days asking the judge to set a trial date.

“Our plan is that we’re going to move forward on the case, regardless of what the defense is planning,” he said.

Broderick said that, if defense attorneys ask the appeals court to review its own decision, the deadline to try Delph continues to close. If the Indiana Supreme Court agrees to review the ruling, then the case will be put on hold.

Cleary said if the appeals court declines to review its decision, he can still seek to have the case transferred to the Indiana Supreme Court.

Delph, 43, is formally charged with two counts of murder; Class A felony arson; and two counts of felony murder. Prosecutors allege he set the fire at his home at 1307 W. Second St. to kill his 41-year-old wife, Robynn, and son Joshua, 9, for insurance money.