Scammer
Banned
Mistrial declared after jury complained about distracting lawyer in audience
A murder trial derailed by a Toronto prosecutor accused of "making strange faces" in court will continue in two weeks without a jury.
Ontario Superior Court judge Nola Garton gave her consent Tuesday to move ahead with a third trial after the defence and prosecution agreed on how to proceed with a judge-only trial.
Erika Mendieta was re-arraigned in court soon after and pleaded not guilty to second-degree murder in the 2003 beating death of her two-year-old daughter, Emmily.
The proceedings are effectively a continuation of Mendieta's second trial, which was presided over by Garton. No new evidence will be introduced, and Mendieta will not be cross-examined again, her lawyers said outside the courtroom. Final arguments will be heard Dec. 14.
Both sides also agreed that Mendieta's voir dire testimony — which jurors did not hear — would also be considered when Garton makes her ruling.
'Strange faces'
Mendieta told the court her testimony was affected by Crown attorney Paul Alexander, who was observing the trial. She said he rolled his eyes and scowled at her.
She gave the testimony after Alexander's "distracting" behaviour was raised by the jury, prompting Garton to declare a mistrial.
The jurors, who didn't recognize Alexander, sent a note to Garton asking that a blond man sitting in the front row of the public seating area be removed from the court. It even included a diagram that identified where he was sitting.
"We find him very distracting, and he is making strange faces all the time," the jury said in the note. "We feel very uncomfortable with him."
Alexander had helped prosecute Mendieta during her first trial, which ended in a hung jury, but wasn't involved in her retrial.
Alexander is not on active court duty and has not spoken publicly about what happened. Ontario's chief prosecutor is investigating the matter.
Paul Burstein, president of the Criminal Lawyers' Association, said there should be an independent review.
An independent review is important to ensure the integrity of any report or conclusion that may be drawn, Burstein said.
"It shouldn't be someone from the Crown's office who may have concerns about the political fallout of doing nothing, or equally of doing something, in terms of disciplinary action against those involved," he said.
Unusual case
The events leading up to the mistrial were so unusual, it even prompted Ontario Attorney General Chris Bentley to say he'd never seen anything like it in his 30 years as a lawyer.
NDP justice critic Peter Kormos, a criminal lawyer, said the case "will be talked about in Crown attorney training courses certainly — if not law school itself — for many, many years to come."
Having a third trial is "the fairest thing that can be done under the circumstances," but it still raises questions about Alexander and the Crown who was conducting the retrial, Kormos added.
Senior Crown attorney Frank Armstrong defended his colleagues last week in court, accusing "overzealous" reporters of having "maligned" Alexander's reputation.
"He was a dedicated public servant who got caught up in being a human being," Armstrong said.
He also championed Crown attorney Allison MacPherson, one of the lawyers currently involved in Mendieta's retrial who worked with Alexander during the first trial. It's been reported that MacPherson looked back several times at Alexander throughout her cross-examination of Mendieta and spoke to him during breaks.
Armstrong denied that MacPherson looked at Alexander when he was in the courtroom, calling her one of the "most honourable" people he knows.
Experts say it's common for a Crown to show up at a retrial to see how things turn out. But there are very clear rules of deportment for lawyers, which apply even when they're off duty.
A murder trial derailed by a Toronto prosecutor accused of "making strange faces" in court will continue in two weeks without a jury.
Ontario Superior Court judge Nola Garton gave her consent Tuesday to move ahead with a third trial after the defence and prosecution agreed on how to proceed with a judge-only trial.
Erika Mendieta was re-arraigned in court soon after and pleaded not guilty to second-degree murder in the 2003 beating death of her two-year-old daughter, Emmily.
The proceedings are effectively a continuation of Mendieta's second trial, which was presided over by Garton. No new evidence will be introduced, and Mendieta will not be cross-examined again, her lawyers said outside the courtroom. Final arguments will be heard Dec. 14.
Both sides also agreed that Mendieta's voir dire testimony — which jurors did not hear — would also be considered when Garton makes her ruling.
'Strange faces'
Mendieta told the court her testimony was affected by Crown attorney Paul Alexander, who was observing the trial. She said he rolled his eyes and scowled at her.
She gave the testimony after Alexander's "distracting" behaviour was raised by the jury, prompting Garton to declare a mistrial.
The jurors, who didn't recognize Alexander, sent a note to Garton asking that a blond man sitting in the front row of the public seating area be removed from the court. It even included a diagram that identified where he was sitting.
"We find him very distracting, and he is making strange faces all the time," the jury said in the note. "We feel very uncomfortable with him."
Alexander had helped prosecute Mendieta during her first trial, which ended in a hung jury, but wasn't involved in her retrial.
Alexander is not on active court duty and has not spoken publicly about what happened. Ontario's chief prosecutor is investigating the matter.
Paul Burstein, president of the Criminal Lawyers' Association, said there should be an independent review.
An independent review is important to ensure the integrity of any report or conclusion that may be drawn, Burstein said.
"It shouldn't be someone from the Crown's office who may have concerns about the political fallout of doing nothing, or equally of doing something, in terms of disciplinary action against those involved," he said.
Unusual case
The events leading up to the mistrial were so unusual, it even prompted Ontario Attorney General Chris Bentley to say he'd never seen anything like it in his 30 years as a lawyer.
NDP justice critic Peter Kormos, a criminal lawyer, said the case "will be talked about in Crown attorney training courses certainly — if not law school itself — for many, many years to come."
Having a third trial is "the fairest thing that can be done under the circumstances," but it still raises questions about Alexander and the Crown who was conducting the retrial, Kormos added.
Senior Crown attorney Frank Armstrong defended his colleagues last week in court, accusing "overzealous" reporters of having "maligned" Alexander's reputation.
"He was a dedicated public servant who got caught up in being a human being," Armstrong said.
He also championed Crown attorney Allison MacPherson, one of the lawyers currently involved in Mendieta's retrial who worked with Alexander during the first trial. It's been reported that MacPherson looked back several times at Alexander throughout her cross-examination of Mendieta and spoke to him during breaks.
Armstrong denied that MacPherson looked at Alexander when he was in the courtroom, calling her one of the "most honourable" people he knows.
Experts say it's common for a Crown to show up at a retrial to see how things turn out. But there are very clear rules of deportment for lawyers, which apply even when they're off duty.
