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Joseph A. Thomas Jr.'s attorney asked Tuesday that the first-degree murder charge against his client be dismissed because his right to remain silent and right to a fair trial were infringed by an Oct. 31 court ruling.

Thomas, 38, is charged in the strangulation death of his former wife, Beth Irby-Thomas, at her Normal Hill home on May 1.

District Judge Michael G. Griffin of Grangeville ruled two weeks ago in response to motions by Nez Perce County Prosecutor Daniel Spickler that no mention could be made of autoerotic asphyxiation during the trial, which is set to begin Dec. 5 at Lewiston.

On Tuesday, Griffin backtracked somewhat from his Oct. 31 ruling, telling Thomas' attorney, Paul Thomas Clark of Lewiston, he could consult with an expert on the sexual practice at state expense. But for the information to be presented to a jury, Griffin said, there will have to be evidence it is relevant.

It's an issue that could benefit from expert testimony, Griffin said. "I've never heard of it until this trial," and he's probably no more naive than most jurors will be, he said.

He also said some general questions could be asked of potential jurors, such as if they had heard of autoerotic asphyxia.

If that's allowed, and then the defendant decides not to testify, the defense has gotten the innuendo into the jurors' minds it wanted from the beginning, Spickler said. There was no evidence at the crime scene anything like that occurred, he argued.

Griffin conducted the hearing via telephone from Grangeville, with the attorneys, Thomas and onlookers in the 2nd District Courtroom at Lewiston.

In an affidavit filed Monday by Clark, Thomas said he will testify to various activities that would make the subject relevant, but Griffin and Spickler said the affidavit doesn't bind Thomas to that.

In response to questions put to Clark, the defense attorney said of Thomas, "He says he will."

"He's not bound by that," Griffin said.

Thomas' affidavit says "the court has placed me in a position where my right to remain silent has been prejudiced/jeopardized and infringed upon." He has been placed, the affidavit says, "in the intolerable position that I must set forth facts that I will testify to at the trial."

Thomas said he will testify he and Irby-Thomas engaged in autoerotic asphyxia at her request, that he observed her masturbating while pulling on a necktie around her neck, and "at a time shortly before her death" she placed a belt around her neck he believes is the same one removed by officers after her death.

The affidavit does not say if that incident was on the night she died, but it does say they engaged in "certain sexual activities shortly before her death. She pulled on the belt while we did so."

The affidavit says after he discovered she died, he covered her body so he could remove their two sons from the house without them seeing her and before police and emergency personnel arrived.

Thomas is a former police officer.

Griffin said the details of whether Thomas' affidavit can be submitted as evidence can be discussed during a hearing Friday, where Clark's motion to dismiss will be discussed.

Members of the jury pool for the Dec. 5 trial have been summoned to court at 8:30 a.m. Friday for a briefing and to fill out questionnaires that will help court officials decide if they are suitable jurors. After an opening, the judge, attorneys and Thomas will move to a separate courtroom to talk about other issues, Griffin said.

Another hearing is scheduled for next Wednesday to decide if, based on the questionnaires, any potential jurors should be dismissed prior to the final selection process.

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Lee may be contacted at slee@lmtribune.com or (208) 848-2266.