updated 5/19/2007 5:13:10 AM ET 2007-05-19T09:13:10

An attorney defending the owners of a nursing home where 35 patients died during Hurricane Katrina argued for the right to present evidence that the government was responsible for the deaths.

James Cobb said in court papers filed Thursday that Salvador and Mabel Mangano couldn't have anticipated that levees would break and flood the area around St. Rita's nursing home in St. Bernard Parish.

"An engineering disaster, unknowable to them, left them vulnerable. The water came through no fault of the Manganos," Cobb wrote in a 21-page memo to Judge Jerome Winsberg.

The couple are charged with 35 counts of negligent homicide. Attorney General Charles Foti has said the Manganos should have taken steps to evacuate patients before Katrina hit on Aug. 29, 2005.

A Foti spokeswoman declined comment on the defense argument, citing a gag order.

Cobb said state and local officials never ordered the couple to evacuate the nursing home. He also pointed out that the Army Corps of Engineers designed and constructed the levees that failed to hold back flood waters.

Video: New Orleans calls residents home "No assessment of the Manganos' responsibility can be made without an understanding that, given a Category 3 storm passing to the east of New Orleans, the flood was not a natural and foreseeable event, but a disaster consequent to the failed projects of the Corps," Cobb wrote.

It was unclear when Winsberg will consider Cobb's argument. The Manganos were due back in court on Tuesday.

Each count of negligent homicide carries a sentence of up to five years in prison and a $5,000 fine.

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