BAY MINETTE, Ala. — Defense attorney John Beck said Monday he will file for dismissal of capital murder charges against Leslie Eric Busby based on new evidence and the specter of double jeopardy after a mistrial was declared Friday.

Buzbee is charged with the Aug. 11, 2007, robbery and fatal attack of Arthur “Bobby” Wilson, owner of Wilson’s Service Center in Spanish Fort.

Beck said he was “surprised” by the mistrial ruling and said the forensic evidence would not have been heard until the third week of the trial, giving the state ample time to evaluate the findings.

“The state hired two forensic pathologists who had time to review the findings,” Beck said. “They had two years to get the medical records and review them. We took the steps to see that it was done.”

Beck said he asked the state for the medical records two weeks earlier and was told they did not have it and would not help get it.

“This is an inconvenience to the state because it blows their case away,” Beck said. “It is also real suspicious of the state.”

Beck said the mistrial motion also will make reference to fingerprints found at the crime scene that did not match Buzbee and DNA found under Wilson’s fingernails that were never analyzed.

“Mr. Wilson was standing at 5:44 that morning,” Beck said. The state needs the attack to happen an hour earlier. Our witness said it is highly unlikely Mr. Wilson could have been conscious an hour after the attack.”

District attorney Judy Newcomb said Tuesday she could not comment on the motion until she has seen it.

Beck asked for and received a subpoena from Circuit Judge James Reid seeking initial examination reports from the University of South Alabama Medical Center concerning assessment of Wilson’s injuries.

A defense-hired forensic pathologist concluded Buzbee could not have been the assailant based on the window of consciousness Wilson had before becoming comatose from severe head injuries, Beck said.

A mistrial was declared in May after jurors failed to reach a verdict. On Friday, the second day of the retrial, Beck announced the forensic pathologist’s testimony would be introduced.

Chief assistant District Attorney Michael Pylant objected to the late notice of additional witnesses and Reid declared a mistrial.

“We were asking time to evaluate the expert’s findings,” Pylant said. “Giving notice during a capital murder case is inappropriate. Why didn’t he get it for the first trial?”

Pylant also said he was apprised of the new witness Thursday at 7 p.m., the night before Beck brought findings to the court.

Newcomb said Beck was “hiding the ball and blowing smoke. In openings, he never mentioned a key witness who would exculpate his client.

“We just wanted to know what he (Beck) wanted and time to review it. For victims, it’s not right to open up all medical records. This type thing happens a lot in rape cases. A judge needs to decide what is important to the case and what should remain private.”

Beck said he has a full-time investigator and friends working on the case, and plans to go to Newcomb with evidentiary issues.

“They need to reopen the investigation and do an honest and thorough investigation,” Beck said.