Rex David Delph breathed a sigh of relief when he learned that Circuit Court Judge Fredrick Spencer was releasing him from jail while he waits to go on trial for murder.

Delph, 42, Anderson, was arrested in June 2004 on two counts of murder and two counts of arson in connection with the May 17, 2004, fire that killed his wife, Robynn, and son, Joshua, 9. Police allege that Delph started the fire in an attempt to collect $345,000 in insurance money.

Delph was released on his own recognizance Tuesday.

Judge Spencer granted a request filed by defense attorney Zaki Ali to release Delph from pretrial detention based on a legal technicality because he was in jail more than six months and had not gone to trial.

Spencer decided that two continuances of trial dates in 2005 were the result of the prosecutor’s office not providing evidence to the defense.

“The continuances sought by the defendant (Delph) were necessitated by the state’s failure to provide discoverable materials to the defense in a timely manner,” Spencer wrote. “The failure to provide evidence that was referenced in the probable cause affidavit for at least 14 months cannot be overlooked.”

The ruling brought harsh criticism from Prosecutor Rodney Cummings.

“Just when you think Judge Spencer wouldn’t do anything else to surprise you, he does this,” Cummings said. “This is the second murder defendant he released. We appeal as many cases as we can and he is the most reversed judge in the state.”

Cummings was referring to Spencer’s decision to dismiss a murder charge against Amanda Cooper in connection with the January 2002 murder of John Miller. The Indiana Court of Appeals ruled in 2004 that Spencer erred in dismissing the murder charge.

Cummings said he can’t understand Spencer’s willingness to put a murder defendant on the street.

“If he (Delph) flees there is nothing we can do about it,” he said. “We will have a trial whether or not he is here.”

Cummings said his office objected to the continuance of the trial in December 2004 and it was granted anyway.

Spencer said in 23 years on the bench he has never granted a similar motion.

He said the Cooper case is completely different and that she was never released from jail.

Cooper was found guilty on charges of robbery resulting in serious bodily injury and false informing. Spencer sentenced her to serve a 25-year prison term on the robbery charge and one year for false informing.

“If I’m incorrect the prosecutor can file an appeal,” Spencer said. “I look forward to the Court of Appeals either confirming or reversing my decision.”

Ali contended that information included in the probable cause affidavit at the time of Delph’s arrest from the U.S. Alcohol, Tobacco and Firearms Agency was not made available prior to the scheduled trial date. Ali said he didn’t receive the material until Dec. 23.

Chief Deputy Prosecutor Mike Chambers said the information was provided last August.

Delph was scheduled to go on trial in January 2005 but Ali requested a continuance in December 2004. At the time the state said it was prepared to go to trial without the evidence.

Delph appeared in Circuit Court on Tuesday and was informed that he is scheduled to go to trial on Feb. 7 with a back-up trial date set for Sept. 12.

“I understand what the judge is saying,” Chambers said after the ruling. “But we objected to the continuance in December 2004. It was the defense that wanted to wait for the final ATF reports.”

Chambers said Spencer has not ruled on whether or the final ATF reports will be admitted during trial.

Chambers said the state wanted Delph informed in court of the trial date.

“If he fails to show up, we can then put him on trial in absentia,” he said.

Ali could not be reached for comment by The Herald Bulletin.

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