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Defendant-Forced Mistrial

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When should the antics of the defendant himself result in a mistrial? AP reports from San Diego that a "judge has declared a mistrial in a kidnapping and assault case after the defendant smeared excrement on his lawyer's face and threw it at jurors."  Weusi "McGowan has pleaded not guilty to kidnapping for robbery, assault with a deadly weapon and other counts in connection with a 2007 home invasion."

Now, if the guy is just plain crazy, he shouldn't be on trial at all. If he is simply a complete jerk, as many criminals are, his vivid in-court demonstration of that fact is logically valid evidence tending to increase the likelihood that the charges are true. We generally don't allow character evidence for that purpose because it is perceived to be unfair to the defendant, not because it is logically invalid. It's "too damn relevant," as one of my law professors said. If the defendant chooses to put that evidence before the jury himself, why should he be spared the consequences? When too many criminals are being offered plea bargains because our courts are overcrowded, why should we abort a trial in progress because the defendant chose to demonstrate his character to the jury?

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Some observations:

1) If the PD decides he doesn't want to represent this guy anymore--guess what, he shouldn't be entitled to free replacement counsel.

2) A litigant should never be allowed to profit from his own wrong.

3) This mistrial likely resulted from the judge thinking that the jury could no longer be impartial. That's silly. If the defendant caused the lack of impartiality, that's his problem.

4) Is this even evidence? The prosecution doesn't even have to proffer it as such.

It could be that the trial judge was so flummoxed by the antics that he/she rashly responded with a mistrial declaration. Hopefully, this would be a one time learning experience that will be recollected the next time a similar display is made, and the trial judge will appropriately respond by removing the defendant and resuming the trial. Otherwise, this trial judge will have a run of excrement-hurling defendants seeking to get the same free continuance the other guy got.

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