Jose “Boom Bat” Negrete’s fourth murder trial isn’t over, and his attorney already raised the specter of a fifth trial Thursday when he renewed concerns his client’s constitutional rights are being trampled so the state can get its so-far elusive conviction.
Safe to say those issues will form the basis of a future appeal attorney Jack 
Furlong will file on behalf of the Latin Kings leader, who is accused of ordering the 2004 murder of gang “queen” Jeri Lynn Dotson and botched murder attempt of gang turncoat Alex Ruiz.
Negrete has already had an 80-year sentence overturned by the appellate court because of jury misconduct.
And even if he is convicted by this trial jury, Furlong hinted an appeal could have merit because Negrete’s fourth murder trial has devolved into a “trial by transcript,” with Superior Court Judge Pedro Jimenez ruling the state can read 2008 testimony of Latin Kings gang member Rhadames “Havy” Acosta to the jury.
Acosta is the third witness whose testimony is being read, joining Ruiz and Latin Kings gang member Joey Martinez. Each expressed various reasons for not testifying.
Furlong said the state is being allowed to “cherry pick” testimony most favorable to its case and transcript testimony cannot substitute for live testimony, which gives the defendant the opportunity to confront witnesses.
“The cumulative impact,” of the so-called trial by transcript has resulted in “a sham of the Fifth Amendment right to confrontation,” Furlong said during a contentious back-and-forth with Jimenez.
Jimenez acknowledged he and the attorneys are in murky legal water, considering he couldn’t point to a case where a bulk of witness testimony was gleaned from prior proceedings.
Jimenez said these issues “limit and sublimate” Furlong’s ability proffer a defense theory.
“You and your client are stuck with what’s been done,” Jimenez said.
Witnesses’ refusal to testify has been a common refrain in Negrete’s trial as many co-conspirators who struck plea bargains with the state for their cooperation have served or are nearing the end of their sentences.
The state, which once wielded all the power, has found itself at the mercy of people like Martinez, who was released from state prison in 2013 after he was sentenced to 10 years for his role in Dotson’s murder.
Its only recourse is Jimenez, who has been reluctant to hold witnesses in contempt.
Assistant Prosecutor John Boyle expressed frustration with the way the trial has gone but told the court neither he nor Deputy First Assistant Tom Meidt knew they’d encounter such resistance.
“Our hands are tied with the witnesses, too,” he said. “Even in the face of being held in contempt, they’ve been recalcitrant.”
In Ruiz’s case, he acknowledged blocking out a near death experience when he appeared before the jury. The state later relied on his past testimony after he said the attack left him with a spotty memory.
By contrast, Martinez feigned memory problems, telling prosecutors he could not recall aspects of the case even when he was shown transcripts of his prior testimony.
On Thursday, Acosta, now 27, told the court he would not testify against Negrete out of concern for his safety and the safety of his family.
The Mercer County Prosecutor’s Office attempted to eliminate that concern before trial by asking news outlets not to publish the names of the witnesses it trumpeted out to testify against Negrete.
Acosta, clad in tan prison garb with his hands shackled, said at a hearing outside the jury’s presence his decision not to testify was out of self-preservation and not “disrespect of the state.”
He was unmoved when Jimenez informed him his refusal meant he could be held in contempt.
Acosta is finishing a state prison sentence after he pleaded guilty to attempted murder for his role in the near-strangulation of Ruiz. His expected release date is in November, according to the Department of Corrections, and he didn’t want to put himself at risk of being labeled a snitch while he remains behind bars.
“This sparks everything back up and I want no part of it,” Acosta said. “I don’t want to testify against Jose Negrete. Period.”