NEW ORLEANS (AP) — Charges against the owners of a suburban New Orleans nursing home where 35 residents died during Hurricane Katrina should be dismissed because the state attorney general, in another action, blames the federal government for the rampant post-storm flooding and resulting deaths, defense attorneys claimed Tuesday.

The husband-and-wife team of Salvador and Mabel Mangano faced 35 counts of negligent homicide for deaths at their St. Rita Nursing Home in St. Bernard Parish — a case investigated and brought by State Attorney General Charles Foti.

But Foti also has filed a $200 billion claim against the U.S. Army Corps of Engineers, contending that the collapse of faulty levees caused floods inundated the New Orleans area, including St. Bernard Parish.

“The attorney general has taken inconsistent and irreconcilable positions because it is factually impossible for both the Manganos and the Corps to be liable for the damage, injury and death” caused by the breaches, the defense motion said.

The motion was filed at the end of a hearing Tuesday during which state District Judge Jerome Winsberg said he was leaning toward allowing the defense to present evidence that the government was responsible for the deaths — and that the Manganos could not have known about the potential for flooding in advance.

Winsberg did not rule on the motion to dismiss the charges and set another hearing for June 1. But the dual claims of the attorney general — that the Manganos were responsible for the deaths, while the Corps was responsible for the flooding — were a major part of attorneys’ arguments.

“The Army Corps of Engineers has taken full responsibility for this catastrophe and disaster,” defense attorney James Cobb said.

Cobb said the attorney general’s claim against the government covers the deaths of about 1,600 people — and fits the definition of negligent homicide.

Foti has “for whatever reason, chosen not to take on the Army Corps and instead take on the Manganos.”

But Assistant Attorney General Burton Guidry said the civil action had no effect on the Manganos’ responsibility. For example, Guidry said the state will try to show that the nursing home did not have enough transportation for an evacuation and that the home did not have a plan to deal with flooding — thus making the Manganos responsible for the deaths.

There is no provision in criminal law to allow a defendant to use “civil comparative fault to justify criminal conduct,” Guidry said.

“In some cases, the defense might want to say someone else committed a murder, but this is a different kettle of fish,” Guidry said.

Winsberg rejected a defense motion calling for different trials to handle the negligent homicide charges and a slate of cruelty to the infirmed charges also brought against the couple.

Defense attorneys claimed that prosecution testimony about the rank conditions at St. Rita’s after the flooding would confuse a jury trying also to determine whether the Manganos were responsible for the deaths.

However, the judge said he would limit such testimony. Defense attorneys said after the hearing that they were pleased by his decision.

Before Tuesday, the Manganos had faced 25 cruelty charges. However, prosecutors dismissed two of those charges because the two residents in question had been removed from St. Rita’s before Katrina. Prosecutors said they were investigating two other such possible cases.

After the hearing, prosecutors refused to comment on the motion to dismiss all the charges, citing a gag order issued by the judge.

Copyright 2007 Associated Press. All rights reserved.