The sexual abuse occurred May 23, 2007, about five weeks after the death of MacNeill's wife, 50-year-old Michele MacNeill.
Somers testified at trial that after she woke at the home to find Martin MacNeill rubbing her buttocks, and licking and kissing one of her hands, the man said: "Oh, oh, I'm sorry, I'm sorry. I thought you were your mother."
Before the July trial, Spencer filed a similar motion to dismiss, asking for the case to be tossed because of loss of evidence. But Judge Samuel McVey denied the motion, saying that while there was some negligence in deleting Somers' interview, it was not "gross negligence" and it was not done in "bad faith."
Spencer argued in the motion filed Monday that without the recorded interview, MacNeill was denied the opportunity to cross-exam Somers about inconsistent statements "with her own words" rather than the words in the detective's case file.
"The Utah County Attorney's Office, whether intentional or negligent, seems to have made an extraordinary number of errors in its zeal to prosecute MacNeill that has deprived him of fundamental fairness and due process," Spencer wrote in the motion, adding that he believed prosecutors in the murder case also "failed to disclose a significant amount of critical evidence."
MacNeill is scheduled to be sentenced in the sex abuse case on Aug. 25. He has not yet been sentenced in the murder case, either.
The motion filed in court this week is similar to another motion filed in MacNeill's murder case, where Spencer asked for murder and obstruction of justice charges to be dismissed or that he be granted a new trial.
Fourth District Judge Derek Pullan is still mulling over the motion and is expected to have a ruling in several weeks. A sentencing date for the murder case will then be set, if Pullan does not grant a new trial.
Spencer argued in the motion that MacNeill should get a new trial because a federal inmate lied on the stand about a possible early release he received in exchange for his testimony and that prosecutors did not disclose that a deal was in the works.
Prosecutors chalked up claims of a "secret deal" to a "conspiracy theory," and said no such deal had been planned.
The federal inmate testified during MacNeill's four-week trial that the defendant confessed to him that he drugged his wife, then drowned her in a bathtub at their Pleasant Grove home April 11, 2007.
Prosecutors said MacNeill killed his wife so he could continue an affair with another woman, Gypsy Willis.