The attorney for Michael Bever wants a fresh look at what could be an important piece of evidence.
Friday, they were in court to ask a judge to make the decision, but she ordered them to work it out without her.
Prosecutors and the defense are arguing over a computer hard drive that could contain video of five members of the Bever family being murdered.
The murders in July 2015 quickly led to the arrest of brothers Robert and Michael Bever as the suspects.
Five members of their family - the parents and three siblings - were stabbed to death.
Robert Bever pleaded guilty and is already in prison serving life without parole.
Now, younger brother, Michael, is set to stand trial and his public defender, Corbin Brewster, is asking for an independent review of a computer hard drive from the crime scene.
“Some of the computers the state was unable to get images from. We're going to take our best shot to see if there's evidence in the case we don't have yet,” Brewster said.
The defense team and state prosecutors couldn't agree on how to do that, so they asked a judge to make the decision but she's refusing, ordering them to figure it out.
“Obviously, she was frustrated today, but I've got to represent my client best I can,” Brewster said.
The defense said the computer was connected to cameras inside the house.
Prosecutors won't say what's on the video, and, long after they supplied a copy to the defense, they don't believe there's anything left to find.
“One would think if they think there's something on those computers that's advantageous to their case they'd be wanting that from the beginning of the case,” Tulsa County District Attorney Steve Kunzweiler said.
The judge insisted nothing will delay the trial, which is now set for April 16th.
Prosecutors said they'll cooperate on another look at the hard drive to see what's on it.