BOONE PROSECUTOR CAUSES MISTRIAL BY HEARSAY IN OPENING STATEMENT IN DEATH PENALTY CASE. CRAWFORD V. WASHINGTON CONFRONTATION RULE VIOLATED.

 

Assistant Boone Commonwealth Attorney Jason Hiltz made a major error in his opening statement in a death penalty case being tried in the Boone Circuit Court.

 

Hiltz told the jury that the defendant’s son, who has since died, told acquaintances that his father forced him to participate in the dismemberment of the deceased victim.

 

Boone Circuit Judge Anthony Frohlich declared a mistrial after Hiltz mentioned the inadmissible evidence 10 minutes into his opening statement.

Since the Commonwealth was asking for the death penalty, it had taken five days to select a jury.

 

Judge Frohlich’s order declaring a mistrial characterized Hiltz’s comment as “inadvertent.” The judge could have tossed out the case had he ruled Hiltz “acted in bad faith” by intentionally including the comments of Clutter’s son.

 

Statements from people who are deceased cannot be admitted if they incriminate others, as this denies the defendant the right to confront his accuser and to cross-exam them.

 

Boone Commonwealth Attorney Linda Talley Smith, after the mistrial, announced that the Commonwealth would retry the case without seeking the death penalty.

 

Hiltz has an excellent reputation as a prosecutor, and Judge Frohlich’s conclusion that the comment was “inadvertent” seems plausible.

 

Few prosecutors are ever personally sanctioned for their errors.  The trial court may be missing an opportunity to send a message to prosecutors that there are consequences for serious trial errors other than a mistrial.

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