Last Updated Aug 29, 2018 4:56 PM EDT
TAOS, N.M. — A judge dismissed child neglect charges Wednesday against three of five people arrested at a remote desert compound in northern New Mexico whereand the was discovered. Judge Emilio Chavez ruled that he could not keep the three in custody because prosecutors missed a 10-day limit for an evidentiary hearing to establish probable cause for the neglect charges.
Prosecutors have other options for pursuing charges against the three — Lucas Morton, Subhannah Wahhaj and Hujrah Wahhaj. That could including refiling the charges or asking a grand jury to indict them.
Prosecutors had pressed to keep them behind bars and planned to present new evidence of anamong some members of the extended Muslim family that settled at the compound last winter.
Defense attorneys say their clients have no record of criminal convictions and pose no risk to the public.
Authorities are pushing ahead with other charges filed against the dead boy's father,, and his partner, Jany Leveille.
They appeared in court Wednesday on charges of child abuse resulting in death, which could carry life sentences in connection with the death of Abdul-ghani Wahhaj. The severely disabled boy's badly decomposed remains were found this month inside a tunnel at the high-desert compound near the Colorado state line.
Siraj Ibn Wahhaj and Leveille pleaded not guilty. They remained silent in court when the new charges were read.
Prosecutors and law enforcement officials alleged Siraj Ibn Wahhaj and Leveille denied the boy proper medicine and health care asdesigned to cast out harmful spirits from the boy.
The boy's mother initially reported him missing last year from Jonesboro, Georgia, after Siraj Ibn Wahhaj said he was taking the child to a park and didn't return. Forensic medical investigators have not identified the cause and manner of the boy's death as they continue their analysis.
Chavez ruled that the other three defendants could be released as early as Wednesday depending on what action prosecutors take. Prosecutor John Lovelace said he respects the judge's ruling and that no decisions have been made yet on how the district attorney's office will proceed.
Defense attorneys said the state Supreme Court put in place the rule on an evidentiary hearing as a fundamental protection of individual liberty and the right to due process.
"We're talking about a month that someone was in custody, it's an absolute deprivation of liberty and that is very precious," said Aleks Kostich, who is representing Morton.
Prosecutors had planned to present as evidence a hand-written document called "Phases of a Terrorist Attack" that was seized from the compound and includes vague instructions for "the one-time terrorist" and mentioned an unnamed place called "the ideal attack site."
Prosecutors wrote in court documents that new interviews with some of the children removed from the compound revealed that one of the adults, Morton, stated he wished to die in jihad as a martyr and that Leveille and Subhannah Wahhaj joked about dying in jihad.
The new charges of child abuse resulting in death against Siraj Ibn Wahhaj and Leveille are tied to an extensive account of Abdul-ghani's death in a journal that prosecutors attribute to Leveille.
Federal immigration authorities say Leveille, a native of Haiti, has been in the United States unlawfully for 20 years after overstaying a visitor visa.