(Oxnard, California) Ventura County Superior Court Judge Rebecca Riley rejected a bid by lawyers for the 14-year old boy accused of killing openly gay teen Larry King to get files and documents from the District Attorney’s office showing how prosecutors determined that Brandon McInerney should be tried as an adult.

King, 15, often dressed in a feminine manner and told friends that he was gay. He was shot in the head during a morning class at an Oxnard school in February 2008. More than 20 other students were in the room at the time. McInerney was arrested shortly after the shooting.

King died in hospital after doctors declared him brain dead and his mother agreed to have life-support removed.

McInerney’s lawyers have said there were mitigating circumstances and the teen should not be tried in adult court. The attorneys filed a discovery motion for all documents by the DA pertaining to the decision to charge McInerney as an adult.  They sought internal memos, notes and correspondence.

The lawyers said in the motion that the prosecutor filed to take into consideration McInerney’s school and home life and thereby violated his constitutional right to due process.

The District Attorney’s office fought the motion, arguing the material was privileged and Riley agreed. She also refused to dismiss the case.

McInerney’s attorney’s said they will appeal.

It is the latest in a series of setbacks for the defense. Last month a judge ruled that McInerney is competent to stand trial after hearing from a court appointed psychiatrist and a psychologist.

His attorneys sought to have the youth declared developmentally incapable of standing trial. If McInerney had been found not competent, he would have been sent to a mental health facility – likely Patton State Hospital in San Bernardino – where he would be treated and held until he was deemed able to stand trial.

In October, Deputy District Attorney Maeve Fox said that white supremacist materials had been found by investigators in McInerney’s bedroom.

“They included hand-drawn sketches of swastikas, references to the ‘14 Words’ and the number 88, which is commonly used by skinheads to represent the words Heil Hitler and Hitler’s SS,” Fox said in a court filing.

A preliminary hearing in the murder trial is set to begin January 26.