Do mistrials tip scales in a case?

Trish Mehaffey
Published: September 29 2011 | 6:15 am - Updated: 3 April 2014 | 1:22 am in
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Mistrials — like the one granted this week in Johnson County District Court — are uncommon, and mistrials based on errors by the prosecution are even less common.

The mistrial was declared this week in the first-degree murder case of Charles Thompson, 19, of Iowa City.

Thompson will stand trial again Dec. 5, which begs the question — does a mistrial help a defendant or prosecutors more in the retrial?

It’s probably a wash, with a slight edge to the prosecution, said Robert Rigg, a professor at Drake Law School in Des Moines.

“It’s basically a do-over, so it doesn’t mean the case will change. But the prosecution tends to have an advantage in retrials,” said Rigg, who also is director of the criminal defense program at Drake.

Greg Hurley, a senior analyst for the Center of Jury Studies at the National Center for State Courts in Williamsburg, Va., said a retrial could be a disadvantage for the defendant “because it gives the prosecution a chance to polish up its case a little. An advantage for the defense would be if it hadn’t put on its case, it got a good look at the state’s case.”

The mistrial in the Thompson case was declared in the second week of the trial, near the end of the state’s case but before Thompson’s defense began.

Thompson is accused of shooting and killing landlord John Versypt, 64, of Cordova, Ill., while he was working on his units in the Broadway Condominiums on Oct. 8, 2009, in Iowa City. Prosecutors contend Versypt was killed during an attempted robbery by Thompson and Justin Marshall, 20, who also is charged with first-degree murder.

Prosecutors made the mistake Tuesday of playing a portion of a videotaped police interview with Thompson that a judge had ordered removed to avoid prejudicing the jury against Thompson.

Tyler Johnston, Thompson’s attorney, asked for a mistrial, saying the prosecutor had violated the judge’s order and that the videotaped statement, suggesting Thompson had been involved in another incident in Michigan, could affect the outcome of the trial.

Johnson County Attorney Janet Lyness said it was a mistake. Additional redactions that had been made to the videotape on Monday still showed up on Tuesday. Lyness stopped the taped interview when she realized the mistake, but it was too late. The judge declared a mistrial.

“As we say, you can’t put the cat back into the bag,” said Hurley, a lawyer. “If it’s error-based, truly a mistake, then there is no other way but to declare a mistrial and retry it.”

Rigg, at Drake, said that won’t stop the defense from asking that case be dismissed, claiming it was an “intentional act” by the prosecution because it knew the “case was going south and double jeopardy would apply, which means he (the defendant) couldn’t be tried again.”

In such cases, the defense has to wonder if the prosecution didn’t “tank it,” Rigg said, because it’s fairly easy to mark the counters on a disc to ensure omitted portions aren’t played in court.

“It’s not like in the old days when you had to splice a tape,” Rigg said. “If the trial wasn’t going in favor of the prosecution, then it’s a valid question.”

Hurley and Rigg said it’s extremely rare, however, for a judge to dismiss a charge based on an intentional act.

“I don’t remember a judge ever dismissing a case in Iowa based on error,” Rigg said. “But if I was a prosecutor I would want to make a record about how this happened.”

Rigg questioned the prosecution’s motive after learning most of the evidence presented at trial was circumstantial and that the defense had vehemently challenged some of the state witnesses’ credibility.

Lyness said after the trial ended Tuesday the tape miscue wasn’t intentional.

“Everybody tried to do the right thing,” Lyness said.

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