any lawyers out there.....Can a judge review this "case" and throw out the indictments?.....it seems there is no case and no evidence of wrong doing, except one word against the word of many others.....
The defense can move for a dismissal on the grounds that there is not sufficient evidence upon which a rational trier of fact could conclude that the offense charged has been committed by the defendant. Such a motion is typically made after the prosecution has presented its evidence to the jury. If the judge agrees with the defense motion, then the court determines as a matter of law that the charges must be dismissed and will not allow the jury to deliberate the case.
However, there IS evidence of wrongdoing in this case. The prosecutor has the sworn statement of the witness that she was raped, he has the medical evidence providing some degree of support for that allegation and he has the photo lineup identification by the alleged victim of three defendants, two at 100% and one at 90% (plus the marginal evidence of the DNA on the plastic fingernail).
While the photo lineup will obviously be challenged as unconstitutional and the issue ultimately will probably be decided on appeal, in my opinion the photo lineup will not be found unconstitutional and the evidence will be allowed. The defense will of course be permitted to make its argument to the jury that the photo lineup identification was unreliable.
The only circumstance in which I could see a motion to dismiss on the evidence successfully made prior to trial in this case would be if the defense proffered compelling evidence that a particular defendant was in another city on the night in question and the state acknowledged that it would not be presenting evidence challenging that.