After nearly a week of jury selection and a day of testimony, a Duluth judge was considering Tuesday night whether to declare a mistrial in the case of a man accused of assaulting two stepchildren and a son.
Outside the presence of the jury on Tuesday, public defender Cindy Evenson asked Judge David Johnson to start the case over again with a new jury after a prosecution witness on Monday referred to a medical report that had not been made available to the defense in the trial of Damen Dean Smith.
Smith is charged with first- and third-degree assault, three counts of felony domestic assault by strangulation, malicious punishment of a child resulting in great bodily harm and two counts of malicious punishment of a child. The children were 8, 6 and 4 at the time of the alleged crimes.
Under Minnesota Rules of Criminal Procedure, the prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any relevant written or recorded statements and reports that relate to the case within the possession or control of the prosecution, the existence of which is known by the prosecuting attorney, and shall provide defense counsel with the substance of any oral statements that relate to the case.
Dr. Sheri Bergeron testified Monday that a pediatric orthopedist had told the foster parent of the 6-year-old whom Smith is accused of assaulting that the boy "would likely be left with a permanent contracture of his elbow.''
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Evenson said the information had not been provided to the defense, and it is directly relevant to two of the charges her client faces regarding causing "great bodily harm.''
Under Minnesota law, great bodily harm is defined as "bodily harm that creates a high probability of death, causes serious, permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm.''
"This really is an error that can't be corrected,'' Evenson told the court. "It's a manifest necessity to declare this case a mistrial.''
St. Louis County prosecutor Leslie Beiers told the court that the missing medical report "slipped by everyone.'' She said Bergeron accessed the medical records from her home computer, and the information in the report was received after the criminal complaint charging Smith was drafted.
Beiers argued that such an extreme remedy as declaring a mistrial was not appropriate or warranted. She said Evenson could handle the matter by cross-examining Bergeron or by other instructions from the court.
Evenson asked the court that if it denies her motion for a mistrial that Bergeron's testimony be struck from the record and jurors be told to disregard it.
Smith sat impassively as the attorneys argued their positions.
A judge can declare a mistrial on the court's own initiative or upon the motion of one of the parties if the court determines there was a procedural error, statements by a witness, judge or attorney prejudiced a jury, or a jury is unable to reach a verdict.
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Johnson told the parties he knew how voluminous the files of documents were in "this complex case'' and said he strongly believed it was an inadvertent mistake. He told the parties he wanted to think about the motion for mistrial overnight. He will announce his decision at 8:30 a.m. today.
St. Louis County
Court Administrator Cindy Stratioti said the county sees an average of about one mistrial a year. The last one was in 2007 when a Duluth jury was unable to unanimously agree on a verdict in a criminal case.
