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Defense attorneys filed a motion Monday seeking the release of Zachary Witman on bail until he is retried for the murder of his 13-year-old brother.

The move comes after Common Pleas Judge John C. Uhler ruled in December to overturn the 2003 conviction of Witman for the death of his younger brother, Gregory Witman.

The York County District Attorney's Office is appealing the overturned conviction to the Pennsylvania Superior Court, and Chief Deputy Prosecutor Timothy Barker has said that if the court upholds Uhler's ruling, he will appeal to the Pennsylvania Supreme Court.

But in the motion filed Monday at the York County Court of Common Pleas, Witman's attorneys said appeals by prosecutors could force Witman to wait in prison for four years until he gets a new trial.

Until the appeals are settled and a new trial is held, Witman's attorneys asked that Witman be released on bail, as he had been prior to his conviction in 2003.

If Witman is acquitted at his retrial, his attorneys Nathan Dershowitz and Norris Gelman argued, "there is no way to recover the approximate four years spent waiting for the Commonwealth appeals to unfold."

But District Attorney Stanley Rebert said his office would contest any motion to release Witman on bail, despite Uhler's opinion that Witman deserves a new trial.

"As far as we're concerned, (Witman) stands convicted," Rebert said.

Charged at 15: Witman, 24, was 15 years old when he was charged with the Oct. 2, 1998, murder of Gregory Witman, then 13, who was found nearly decapitated on the laundry room floor of their New Freedom home.

Zachary Witman was convicted and sentenced to life in prison without parole for his brother's death, and he remains at Smithfield State Correctional Institution in Huntingdon County.

But last year, Dershowitz, Gelman and a third attorney representing Witman, Amy Adelson, appealed the conviction. In December, Uhler ruled that Witman's former attorney David McGlaughlin, was ineffective at Witman's trial in 2003.

Uhler overturned Witman's conviction because McGlaughlin allowed prosecutors to use a pair of blood-stained socks that police obtained from Witman. Uhler, who presided over the 2003 trial, had granted a defense motion to suppress the socks as evidence because he ruled police improperly obtained them.

But McGlaughlin said he allowed prosecutors to use the socks as evidence because he thought they would work to Witman's advantage. McGlaughlin said he believed it was obvious a bloody footprint police found did not match that which would have been made by the socks Witman wore.

Without the socks, Witman's attorneys said, prosecutors' case against Witman has been "substantially weakened," according to court documents. Barker said Tuesday that he had not seen the motion filed by Witman's attorney's Monday and could not comment on it. Previously Barker has said that if Uhler's ruling stands, he's prepared to go to trial.

-- Reach Brock Parker at 505-5434 or bparker@yorkdispatch.com.

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