A judge denied the defense’s request for the dismissal of charges against David Morgan during a hearing on Thursday afternoon. A retrial has been scheduled to begin on March 18, with jury selection to take place on March 22.
“If nothing else, the trial judge is left with a certain amount of discretion to weigh the balance of justice in this case and whether dismissal in this case would support the ends of justice,” Judge Joseph Wilson said after hearing arguments from both sides. “I do not find that that would be the case. The criminal charges in these matters are of a most serious nature. I don’t believe justice would be served by dismissing this case.”
A mistrial was declared on Feb. 29 after fire investigator Mikael Makela said it was his opinion that the fire had been intentionally set, when the defense’s understanding was that he would say an intentionally set fire could not be ruled out. Wilson agreed with the defense’s argument that this was a violation of the discovery order and therefore a violation of the defendant’s rights.
Defense attorney Donald Wackerman argued Thursday that the attempted murder, assault and arson charges against Morgan should be dropped because the actions of the state would prevent a fair trial.
“Mr. Morgan has been prejudiced by the conduct of the state in this case. He has lost his tribunal – he has lost a jury that he has selected and was happy with,” Wackerman said.
Wackerman further argued that the prosecution knew what the fire investigator would say and specifically asked questions leading to that answer and should not be able to try again.
“This is not an accident,” Wackerman said. “This is not inartful. The questions calling for that conclusion are clearly calling for that answer.”
Deputy prosecutor Paul Stern, who questioned Makela on Feb. 29, looked down and shook his head.
Those questions violate the discovery order, Wackerman argued, because information discovered by the prosecution while building a case against Morgan was not disclosed to the defense.
“I don’t know and can’t know if this is information that was disclosed in Mr. Makela’s opinion to the state,” Wackerman said.
Wilson agreed that it is a violation, but said the mistrial is already a sanction against the state for that violation. He also stated that under the grounds Wackerman outlined, any mistrial would automatically lead to a dismissal.
Deputy prosecutor Seth Fine made that same point, and argued it is still possible for Morgan’s trial to be fair.
“The question then (on Feb. 29) was, ‘Can the defendant have a fair trial given the circumstances?’” Fine said. “You determined, no. Now, that question is the same, but the answer is yes.”
Fine also said Stern is remorseful following the declaration of the mistrial.
“It is a mistake Mr. Stern regrets,” Fine said. “It is not a mistake that he or anyone else in this office will be tended to repeat.”
In the end, Wilson declared a retrial would be fair.
“With all due respect to the defense, I’m going to deny your request to dismiss filings for this case,” Wilson said.
However, Wilson said he was concerned about the turn Stern’s line of questioning took that eventually led to the mistrial declaration.
“I have a seasoned criminal prosecutor in front of me, who has tried a number of cases in front of me, who is beyond competent,” Wilson said. “This was not a sloppy mistake. The questions that were asked of this witness were designed to elicit an opinion.”
After the defense made a request for mistrial in February, the prosecution asked for time to search for proof that they had shared the opinion with defense attorneys. After they didn’t find any proof, they returned and said this had been a mistake.
On Thursday, affidavits from the prosecution as well as Makela were presented to Wilson stating that Makela’s testimony went beyond what the prosecution knew and what they had talked about previously.
Wilson said he remains bothered by the conflicting stories.
“I’m left again with these two competing theories of what the heck happened,” Wilson said.
He then said he will reserve the right to give additional sanctions against the state at the end of the trial.
–By Natalie Covate