Judge questions trying man a 4th time

A judge on Thursday threatened to dismiss charges against a Southern California man accused of seriously wounding a woman while trying to kill her father -- unless prosecutors can improve their case.

Jesse David Alvarez, 42, has been in custody more than five years and has endured three unsuccessful attempts to be prosecuted.

"Why should this court allow a fourth trial?" asked Fresno County Superior Court Judge Wayne Ellison.

Ellison told prosecutor Michael Frye he wanted to know how any new trial would be different from the first three "so it is not done simply for harassment of Mr. Alvarez."

Authorities say Alvarez, armed with a silencer-equipped gun, came to a northwest Fresno home on Sept. 24, 2004, with the intent of killing a man. Instead, the gunman seriously wounded the man's daughter who answered the door, and fired shots toward another daughter.

The first trial ended with a jury deadlocked 7-5 in favor of acquittal. Alvarez was convicted in a second trial, but the verdict was overturned on appeal because of jury misconduct. A third trial also resulted in a hung jury.

A key may be the daughter who was shot. She testified at the first two trials, but not the third, because she is in the middle of a high-risk pregnancy. That is continuing, with the new trial scheduled to begin next month.

Without her, Ellison doesn't think the prosecution has a case.

Attorney Douglas Foster, who represents Alvarez, said the "prosecutor says the same thing over and over -- they have an overwhelming case against Alvarez."

But he said the multiple trials and Ellison's skepticism show the case is anything but overwhelming.

After the hearing Frye said, "I anticipate that [Alvarez] will be retried."