The defense attorney for Christopher Porco, who was convicted of killing his father with an ax and brutally assaulting his mother, argued for a new trial in front of the state Court of Appeals on Tuesday. Steve Ference has more from Albany.

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ALBANY, N.Y. -- "We were able to cover all the issues," said defense attorney Terence Kindlon, who argued Tuesday that convicted ax murderer Christopher Porco shouldn't have been convicted of the brutal 2004 attack on his parents.

"It's not just that he was in Albany; he was in that house," said prosecutor Christopher Horn.

Porco had told investigators he was at school in Rochester at the time, but prosecutors believe he drove hours to kill both his father, Peter, and his mother, Joan, who survived the attack. Several witnesses said, when they found her near death, she nodded her head when asked if her son Christopher did this to her. Then, she lost her memory of it all, even supporting her son throughout the trial and attending these latest arguments.

Hon. Carmen Beauchamp Ciparick said to Kindlon, "They also asked about her other son, and she apparently shook her head back and forth and her figure back and forth..."

"Yes," said Kindlon. "And, again, now see, I would give anything to be able to cross examine Joan Porco. I'd give anything because we'd like to know what she meant by that."

Horn said, "The right of confrontation means that you get to have the witness brought into court and have them answer every question posed, and that's exactly what happened here, and they seem to understand that."

The legal question bringing both sides to New York State's highest court, the Court of Appeals. Both sides got peppered with legal questions by six judges.

Hon. Carmen Beauchamp Ciparick said, "She couldn't possibly be lying there thinking about, she's lying there in blood, no one has come to her assistance, she couldn't possibly be thinking about who she's going to...frame, let's say."

The judges were trying to tease out whether that head nod should have been kept from the murder trial, instead of it being allowed in for jurors to consider as direct evidence, which led to a different set of instructions for the jurors to reach their verdict.

One of the big questions that the judges seemed focused on was, what's the difference between someone who physically can't remember when something happened to them, versus someone who happens not to remember when they're testifying about something?

Horn said, "Can it honestly be said that they would've been in a better situation if Joan Porco was able to come into the courtroom and say, Yes, I remember identifying my son as the person who did this, but I have no memory of the event."

Hon. Jonathan Lippman said, "But what if she came in and said, I remember saying, yeah, I wanted my son with me?"

"Who knows? She could say the one-armed man from The Fugitive came into our house and attacked us. Who knows what she would say. But I don't think for a microsecond that she would say Christopher did this to me," Kindlon said.

The decision that could lead to a new trial is expected in mid-October. If the appeal is denied, depending on the wording of the conclusion, it could still become an issue for the U.S. Supreme Court, as Christopher Porco serves out a life sentence, with the possibility of becoming a free man.

Watch the appellate court arguments from the Christopher Porco case

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