Christopher Porco and His Trial

The supposed head nod by near fatally injured Joan Porco seemed to indicate her son Christopher was responsible for the attack on her and her husband. But there were different accounts as to what happened when she was discovered in her upstairs bedroom clinging to life.

Now it's a key point in the recent appeal and legal experts who have now read through it agree the appeals court will have to grapple with serious legal arguments.

"They're certainly not frivolous issues," said legal expert Paul Der Ohannesian.

A main argument in the appeal that witnesses all gave different stories as far as the alleged head nod and the defense argues it shouldn't have been let in as direct evidence.

Michael McDermott, former Chief Assistant District Attorney, said, "If that was erroneously introduced into evidence, then the rest of the case is just circumstantial evidence and the jury should have been charged as if it were an entirely circumstantial evidence case.”

McDermott, who was the lead prosecutor in the Porco trial, says he still believes the case against Porco was solid but added, "I think there are some real serious issues here. It would be presumptuous of me to hazard a guess as to what the appellate division will do."

McDermott says there is room for debate, but that any errors on the prosecution's part didn't impact the outcome. For instance, the defense claims police used the interrogation of Porco to investigate him, even though it was ruled that police illegally questioned him, something prosecutors have denied.

"One of the arguments of the defense is there wasn't enough hearings on this issue, that a letter from a member of the prosecution didn't really adequately answer the question did police get leads from the illegally obtained statement?" said Der Ohannesian.

"However the appellate division decides this is going to be important for future cases people handle," said McDermott.

And if the appeal were to be granted, it does leave several questions. Where would the trial take place? And how much would it cost if the trial had to be moved out of the county yet again?

"Hopefully it never comes to pass," McDermott said. "But if it did, would Orange County be the venue where it's tried again? There was all that publicity down there where they have to try it up somewhere in the North Country or something."

For now, prosecutors work on their response to the appeal. Then there could be hearings on some of the issues and/or a new trial, or Porco could simply remain in prison serving a maximum life sentence.