SANTA MARIA – The attorney for a Lompoc Federal Prison guard accused of second-degree murder is asking a judge to dismiss the charge.
Timothy McNally was arrested last March after police found visiting Victorville Federal Prison guard Gary Bent dead from a gunshot wound inside his room at the Embassy Suites Hotel in Lompoc.
Bent was part of a delegation visiting the Lompoc Correctional Facility for training.
McNally says he was partying with Bent in his hotel room when the handgun he had with him accidentally discharged killing Bent as his sat on the edge of the bathtub.
McNally has admitted that he shot Bent, but he says it was completely accidental and not murder.
The District Attorney's office says McNally, because he is a gun owner and a prison guard, knew how dangerous it was to be playing around with a loaded handgun inside Bent's hotel room.
The prosecution says the second-degree murder charge is warranted because McNally showed a deliberate disregard for human life when he pointed the gun at Bent and it fired killing Bent instantly.
During a preliminary hearing on June 22 in Lompoc Court, a judge ruled there was enough evidence to put McNally on trial for second-degree murder, along with special allegations involving the use of a gun.
Monday morning at a pre-trial arraignment in Santa Maria Court, McNally's defense attorney entered a plea of not guilty to the charges and was granted a request for a hearing a motion to dismiss the charge of second degree murder against McNally.
"The judge will look at the transcript and, like I argued to Judge Melville in Lompoc last month, I believe there was ample evidence to hold him (McNally) to answer to involuntary manslaughter and not second degree murder", says defense attorney Michael Scott, "if successful, then the charge will be reduced to involuntary manslaughter and then from there we can make a decision to settle the case or go to trial, but the involuntary manslaughter is a substantially less penalty than second degree murder, that's life, 15 to life."
Scott says if his "995 motion to dismiss" is not granted by the judge, the case against Timothy McNally could go to trial before the end of the year.
McNally remains in Santa Barbara County Jail with bail set at $2 million.
