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Monday, May 20, 2013 03:15 pm

Mistrial winds

Prospects of early end raised

Twice now, the prosecution has stumbled. Twice the defense has acquiesced, allowing proceedings to continue without strenuous objection despite opportunities to demand a do-over in the murder trial of Christopher Harris.

Has the defense screwed up by not pressing matters and demanding a mistrial? Or is the defense’s comme ci comme sa approach evidence that Harris’ lawyers believe that things are falling the defendant’s way?

The first chance to bring everything to a halt came May 10, when a recorded interview of police interrogating Harris came to an early conclusion when it turned out that the DVD that was supposed to have been edited was, in fact, unabridged. Jurors heard Harris say that police who were part of a meth task force had recently visited the house where he had been staying shortly before the killings. Jurors were not supposed to hear that, and so they were sent home while lawyers pondered what to do.

The prosecution lacks a solid motive for a quintuple homicide of innocent people accomplished with a tire iron, and here, now, was the specter of methamphetamine, a drug known for provoking paranoia and violence. With the blessing of the defense, proceedings continued, with jurors seeing the edited DVD while following along with a transcript, plus a command from the judge to ignore what they had previously seen and heard. 

One week later, proceedings again stopped unexpectedly on Friday when Robert Michael Jennings, a retired Illinois State Police special agent who twice interviewed Harris, told jurors about what led up to the second interview that culminated with an arrest. Investigators, Jennings told jurors, had matched Harris’ palm print to a bloody print found in the Gee home. Police were hatching plans to arrest Harris when he called Jennings, asking to retrieve clothes that police had taken from him the night before, Jennings testified.

At that point, the defense asked that the jury be sent out of the courtroom, and so arguments began.

Not until Jennings testified on Friday did the defense know that Harris was as good as arrested when he showed up at the sheriff’s office to pick up his clothes, the defendant’s lawyers told the judge. Instead of returning his clothes and sending him on his way, police took him to an interview room. After an interrogation lasting more than an hour, they put him in handcuffs and took him to jail.

Statements made while Harris was unwittingly under de facto arrest should have never have been admitted into evidence, his lawyers argued in a hastily filed motion to suppress his statement and prevent jurors from hearing it.

“He was not advised that he was being taken into custody at the time he arrived at the Logan County Safety Complex, even though the decision had already been made to find and arrest him,” Harris’ lawyers wrote in the motion. “In fact, he was lied to by being told specifically that he was not in custody.”

Prosecutors pointed out that police informed Harris of his Miranda rights and said that Jennings had misspoken when he testified last week that police had already planned to arrest the defendant when he showed up at the Logan County sheriff’s office to pick up his clothes. The retired special agent said the same thing when re-called to the stand on Monday.

“I used the term ‘custody’ or ‘arrest’ on Friday, which was an error on my part,” the retired special agent said Monday under questioning by defense attorney Daniel Fultz. “The plan…was to locate Mr. Harris so we could make plans to bring him in for questioning, and whatever followed after that. My understanding is that my statement led you to believe that the plan was to arrest Mr. Harris based on the information we had at the time. That was not the plan.”

Immediately prior to Jennings’ mea culpa, Harris himself had testified that he did not feel free to leave the interview that took place in the sheriff’s office behind locked doors. He also said that he noticed unidentified people watching him in two vehicles shortly before he arrived at the sheriff’s office. He said that at least one of the vehicles followed him and his ex-wife from her mother’s house to the sheriff’s office, and he recognized men who were in one of the vehicles when he arrived at the sheriff’s office to pick up his clothes.

“There was a couple guys came in behind us,” Harris testified. “I asked them if they were detectives because I recognized them as following us. They said no. … I was concerned. I knew that they were following me.”

Nonetheless, Fultz dropped the motion to suppress Harris’ statement, accepting Jennings’ explanation that he had made a misstatement when he testified that police had decided to arrest the defendant before he spoke with police.

In written motions, both sides addressed the possibility of starting over again. Fultz said that there was no need for a mistrial. Rather, he wrote, the jury could be told that the promised recording of Harris’ interrogation couldn’t be shown to the jury due to “technical difficulties.”

Jurors are officers of the court. So are lawyers. So are judges. Fultz in his motion did not address the propriety of officers of the court fibbing to officers of the court. But he did practically beg to keep the trial going.

“Counsel for the defendant has…given much thought and consulted with several very well qualified criminal defense attorneys about this matter and for assistance in deciding what an appropriate remedy would be to avoid a mistrial,” Fultz wrote. “Counsel believes that this issue does not rise to the level of a mistrial.”

Prosecutors, on the other hand, told the judge that it isn’t up to the defense to decide whether a mistrial was appropriate. Rather, prosecutors wrote in their motion, the law required, not just allowed, a mistrial if the defense were to win its bid to prevent the jury from hearing Harris’ statement to police.

“Therefore, the defendant cannot unilaterally state than an order suppressing the defendant’s statement on Oct. 1, 2009 will not result in a termination of the trial,” prosecutors wrote.

If it was a warning, it worked. And so the trial continues.

Contact Bruce Rushton at brushton@illinoistimes.com.

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