GARY, Ind. (STMW) — In an unusual move, a Lake Superior Court judge has dismissed a criminal case against a Gary police officer who was charged with attacking his girlfriend in their apartment in October.

Judge Diane Ross Boswell’s decision Wednesday in the case against Demonte Yanders was not requested by prosecutors nor Yanders’ attorney and came after the judge rejected the state’s request that Tiffany Swagerty be jailed until she appeared for pretrial questioning by the defense.

Boswell had granted defense attorney Mark Gruenhagen’s request for a protective order that would bar Swagerty from testifying in Yanders’ trial because she had twice failed to show up under subpoena for a deposition with Gruenhagen. The state then sought to have her detained until she agreed to appear to give the sworn statement.

“I will not put a victim in jail,” Boswell said. “This case is dismissed.”

Prosecutors said they will appeal her ruling. Yanders was charged with criminal confinement, strangulation and battery in the October 2013 incident in the couple’s apartment in the 500 block of South Vermilion Street in Gary.

Yanders, 30, faced similar charges last year for another alleged attack on Swagerty, but prosecutors dropped those charges July 1 after Swagerty told them she didn’t want the case prosecuted.

Three months later, police were called to the apartment by a panic alarm. The couple had been at a club the previous night celebrating Yanders’ birthday, but they got into an argument and he left after they returned home, according to police.

Swagerty told police that she went to bed and later awoke to Yanders choking her and punching her in the head with his fists.

When officers arrived, they heard Swagerty screaming for help, police said. They said officers were let inside by her 11-year-old son and found Yanders on top of her in the bedroom.

Yanders has been on unpaid administrative leave, and a new ordinance provides for reinstatement and back pay for a police officer whose criminal case is dismissed or who is acquitted. Gruenhagen said he will provide the city with a copy of the judge’s order dismissing the case.

(Source: Sun-Times Media Wire © Chicago Sun-Times 2014. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed.)