Judge denies motion to drop Barber’s felony assault charge to a misdemeanor

UPDATE: Though there was a readiness hearing originally scheduled for Friday, because the attorneys discussed their readiness during Wednesday’s hearing, tomorrow’s is cancelled.

Whitman County Superior Court Judge Gary Libey ruled at a hearing today that there was sufficient evidence for a jury to find WSU football player Robert Barber guilty of felony assault.

Barber’s attorney, Steve Graham, filed a motion to dismiss the felony charge on March 17, according to court records. Graham attended Wednesday’s hearing on behalf of Barber, who was unable to attend.

Graham said there was not enough evidence to charge Barber with felony assault when looking at each of the injuries Barber allegedly inflicted on the victim, Jackson Raney, at a house party on July 23. Due to Raney’s blood alcohol level of .32 and memory loss from that night, Graham said there is no way to determine if Barber caused him to lose consciousness or if it was due to intoxication.

“I mean, that’s just blackout level for anybody, much less a young person,” Graham said, arguing the charge should therefore be dropped to misdemeanor assault.

Chief Deputy Prosecuting Attorney Daniel LeBeau said Graham’s argument was like the closing statement of a jury trial. The jury should decide whether the charge should be felony assault or misdemeanor assault, LeBeau said.

LeBeau said Graham was trying to pick apart the cause of each injury by itself.

“You don’t have each injury alone here,” LeBeau said. “You have a collection of injuries.”

Raney suffered a wrist injury, unconsciousness and abrasions on the back of his head, LeBeau said. A cellphone video also shows Barber punching Raney and knocking him to the ground, he said.

After Libey denied the dismissal, he read aloud some of the details included in the probable cause statement from the night of the house party.

The judge and the two attorneys confirmed Barber’s trial will begin at 9 a.m. on May 15 in the Whitman County Superior Courtroom. Superior Court Judge David Frazier, who overturned the WSU Student Conduct Board’s decision to suspend Barber in November, will preside over the trial.

The attorneys and Libey decided to call 50 jurors for the selection process, due to the media coverage of the trial. The trial will last about two days, LeBeau said.

Barber receive a contract offer from the Carolina Panthers on Monday, but the team rescinded the offer later that day after learning about his upcoming trial. The Carolina Panthers have not responded to request for comment.