Murder suspect set to be released; judge throws out indictment

Murder suspect set to be released; judge throws out indictment

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Jeffrey Martinson Jeffrey Martinson

It happened during a bitter custody battle.  Jeffrey Martinson -- accused of killing his 5-year-old son during a weekend visitation at his Ahwatukee home.

Police say he also tried to kill himself, but survived and was later indicted on 1st degree murder charges.

Now there's a major twist in the case as Martinson is about to be released from jail -- expected to walk free just days before Thanksgiving.

He is about to be a free man after being locked up for nine years.

On Tuesday, a judge found prosecutors acted in bad faith before, during and after his first trial and ordered Martinson set free.

"I went to see Jeff last night immediately," said defense attorney Michael Terribile.  "He was elated too, we were both in tears."

Terribile says what happened to his client is an injustice.  Martinson was arrested in 2004, accused of killing his son Josh.  

When asked did he do this, Terribile replied, "No, he found his son floating in the tub.. the little boy drowned."

The first trial ended in a mistrial and a re-trial can't happen after Tuesday's ruling.  A judge found prosecutors had a "win by any means strategy," trying to get him convicted.  We read part of the ruling to Maricopa County Attorney Bill Montgomery.

When asked -- prosecutors intentionally and willingly engaged in misconduct and they acted in bad faith.  That's a big deal?  Montgomery replied, "For that one judge and that one case, yes and we have several avenues that we're going to be able to pursue."

He says they'll most likely appeal.

So is Martinson out in six days?  "God, I hope not," said Montgomery.

We asked Montgomery what he would say to Josh's mother, who still believes Martinson killed their son.

"Don't give up hope. It's not done."

"Martinson was in custody for five years.. for five years before they could bring him to trial and then they couldn't manage to give him a fair trial," said Terribile.

Court Documents: Click here to read the Martinson decision

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