PERU, Ind. (Jan. 21, 2015) -- An Indiana prosecutor told FOX59 he had no choice but to drop attempted murder charges, pointing to a possible hole in the law.
A judge sentenced Gregory Konrath, 48, on lesser stalking charges this week. The sentence completed the process of dropping an attempted murder charge in the case against Konrath.
Miami County Prosecutor Bruce Embrey said Konrath was caught on tape by a girlfriend, laying out an elaborate plan to kill his ex-wife.
"I've never seen a case like it. There it is in his own words," Embrey said.
It's Indiana's own law, though, that led Embrey to drop the charges. He found that precedent has been set in past cases that for an attempted murder charge to stand, the suspect must be in the act. A plan that has yet to be executed wouldn't stand up.
"I don't think we can go forward with our case," Embrey said.
It's surprising because on the tape, Konrath goes so far as to say he had a gun, ammunition and had mapped out his plan.
"When I loaded the gun I wore gloves. ... I (will) ditch the clothes, gloves in a dumpster which I already have picked out. I go and wash up in a local gas station and then I drive home," Konrath said, according to a court transcript.
In that transcript, Konrath even talked about shooting his ex, saying "I don't know, is she going to ... slump down and die right there. That would be ideal but maybe she'll writhe around and start making noise."
So why won't he be charged? IU Law Professor Fran Watson told FOX59 that attempted murder is on the same level as murder in Indiana, leading to a higher burden. The state must prove that a suspect took a "substantial" step, meaning Konrath would need to go so far as to lie in wait or point the gun to be convicted.
"We want people to abandon crimes, so we don't want to punish someone in a broad sense if they decide not to murder someone," Watson said.
Embrey, though, said he is unhappy with the outcome because in his view, Konrath was on his way to murder.
"This man intended to kill his ex-wife. There is absolutely no doubt in my mind," Embrey said.