A judge has dismissed a murder and child abuse case and ordered the release of the defendant - an Arizona man accused in the 2004 drugging death of his 5-year-old son, Josh.
"I'm elated," said Michael Terribile, defense attorney for Jeffrey Martinson. "Obviously, in my opinion, that's what needed to be done."
Maricopa County Superior Court Sally Duncan issued her ruling on Tuesday in the case against Martinson. In the decision, she found "egregious misconduct" by prosecutors and said Martinson cannot be retried. Duncan ordered him to be released from jail on Nov. 26.
[PDF: Read the judge's full ruling]
"I think she (Duncan) said pattern and practice of misconduct spanning pre-trial, trial and post-trial proceedings," said Terribile. "I mean, it just permeated the case."
Martinson was convicted in 2011. A judge then declared a mistrial in his sentencing phase when jurors were unable to reach a decision on a push by prosecutors for the death penalty.
In her ruling, Duncan wrote, the prosecution secured that 2011 conviction "based on an uncharged theory ... relying on a win-by-any-means strategy."
"They charged him with child abuse as a predicate for felony murder," said Terribile. "But they prosecuted him on an intentional, premeditated homicide theory."
During a press conference Wednesday, county attorney Bill Montgomery called Duncan's assertions of prosecutorial conduct "allegations."
"We're going to review it (ruling) and also it will include a review by our ethics committee for the conduct that was raised in it," said Montgomery.
Terribile called Martinson's impending release, after nine years in jail, bittersweet.
"Would I rather hear not guilty?" he said. "Yeah, I'd love to hear that. But we were denied the fair opportunity to get that."
Montgomery said his weighing his next move, which could be an appeal.
When asked if he had any words for the mother the little boy, the victim at the center of this case, he said, "Don't give up hope. It's not done."
Copyright 2013 CBS 5 (KPHO Broadcasting Corporation). All rights reserved. The Associated Press contributed to this report.