It’s a staple of courtroom dramas: a surprise witness who saves the case for the prosecutor or defense lawyer.
As judges often remind jurors, this is not TV. And, as a Philadelphia Common Pleas Court jury learned Tuesday in the trial of three men in the 2009 beating death of a man outside the Phillies’ South Philadelphia ballpark, courtroom surprises are not a good thing.
The surprises in question – which resulted in a mistrial after four days of testimony -- were two prosecution witnesses who identified defendant Francis Kirchner, 30, of Fishtown, as the man who on July 25, 2009 delivered the fatal kick to the head of David W. Sale Jr.
Sale, 22, of Lansdale, was in a bachelor party that wound up getting into a fight inside McFadden’s, the sports bar attached to Citizens Bank Park. After Sale and friends and the opposing force from Moe’s Tavern in Fishtown were ejected by McFadden’s bouncers, a one-sided fistfight erupted in parking lot M that allegedly ended when Kirchner kicked the prone, barely conscious Sale in the head.
Others have implicated Kirchner as the kicker. The problem is that Sale’s friends Daniel Curran and Ryan Tulino were never among them – until they took the witness stand, Curran on Friday and Tulino on Monday. The rules of court say the prosecution must divulge before trial any incriminatory evidence – including identification testimony -- to the defense attorney.
Kirchner’s lawyer, Jack McMahon, moved for a mistrial Friday after Curran testified, but Judge Shelley Robins New said no. But after Tulino did the same thing Monday, the judge said she felt she had no choice but to declare a mistrial.
In addition to the question of fairness to the defense, New said, the surprise identifications put Assistant District Attorney Richard Sax in an impossible position. Sax had assured judge and defense lawyers before Tulino testified that he would not identify Kirchner. To defend himself against defense claims of prosecutorial misconduct, the judge said, Sax himself would have to take the witness stand and attack the credibility of his own witness.
“The jury would be confused,” the judge added in an understatement.
New has called the parties back into court Wednesday morning to discuss a date for the retrial. Or, maybe not. McMahon has said he will move to bar a retrial on the grounds that prosecutorial misconduct would violate Kirchner’s rights under the Constitution’s double-jeopardy clause, which says a person can’t be tried twice for the same crime.
New has already indicated that she has doubts about Tulino’s credibility after what she called the “blurt out” and Sax has been a passionate, respected prosecutor for more than two decades, so the odds of the three defendants being set free are probably pretty long.
Then again, as judges say, this is not TV.