If Friday’s developments in the Philadelphia trial in the 2009 double murders at the Piazza at Schmidts complex seem familiar, there’s good reason.
In September, a prosecution witness blurted out – for the first time -- incriminating evidence against one of three men on trial in the 2009 beating death of a man outside the Phillies ballpark.
Court rules say that if a prosecutor has reason to believe a witness may suddenly provide incriminating evidence, the prosecutor must advise the defense lawyer so the lawyer is not surprised in mid-trial. If a judge finds that the prosecutor had reason to suspect the surprise evidence would come to light – but did not inform the defense – the judge can declare a mistrial.
More important, the judge may then dismiss charges against the defendants because of “prosecutorial misconduct” and bar retrial under the Constitution’s “double-jeopardy” provision, which says a person cannot be tried twice for the same crime.
So we come to Friday’s session in the trial of three men in the June 27, 2009 slayings of party planner Rian Thal, 34, and Ohio-based long-distance truck driver Timothy Gilmore, 40.
Six men were supposed to go to trial on Nov. 7 but three pleaded guilty, including Donnell Murchison, 35, one of three gunman and the only one to plead guilty to shooting Thal and Gilmore in what prosecutors say was a drug robbery gone bad. In addition to their day jobs, Thal and Gilmore were involved in the city’s drug trade. Police later found more than $100,000 in cash and 8-1/2 pounds of cocaine in Thal’s posh seventh-floor Piazza apartment – the apparent object of the drug robbery.
Murchison’s plea bargain let him escape the death penalty in exchange for two consecutive life prison terms with no chance of parole. Prosecutors also agreed to protect Murchison’s family and see that he serves his time in an out-of-state federal prison to avoid retaliation.
But the quid pro quo was that Murchison had to testify truthfully against his three alleged former associates: Will “Pooh” Hook, 43, also known as Keith Epps, the alleged mastermind of the drug robbery scheme, and alleged gunmen Edward Daniels, 44, and Antonio Wright, 30.
Murchison agreed to testify until Friday morning, when he demanded last-minute meetings with his lawyers before testifying. When he took the witness stand before the Common Pleas Court jury of seven women and five women, Murchison’s first words were: “I do not wish to testify.”
Eventually, Murchison testified in a fashion. For almost two hours, Vega extracted a series of one-word answers confirming Murchison’s two statements to detectives as Vega read them verbatim to the jury. But when it came time for Christopher D. Warren, Hook’s attorney, to cross-examine the admitted killer, Murchison’s answers decreased 100 percent – no words.
Warren and the other defense attorneys moved for a mistrial, which Judge Jeffrey P. Minehart so far has denied. Minehart ordered prosecution and defense lawyers to return Monday prepared to address whether Murchison should be held in contempt of court and, if so, how the trial could proceed.
Minehart could hold Murchison in contempt of court and order the jury to ignore his testimony because the defense was deprived of its constitutional right to cross-examine him.
But that could result in a defense motion for a mistrial and one to bar retrial on double-jeopardy grounds. Defense lawyers could argue that a retrial should not take place because of “prosecutorial misconduct” — prosecutors got Murchison’s incriminating testimony before the jury though they knew he would balk at questioning.
As for Murchison, prosecutors could withdraw the promise to house him in a federal prison or ensure his family’s safety. They could also annul Murchison’s plea agreement, put the death penalty back on the table and take him to trial.
In the Phillies case, a resolution was worked out. The three defendants pleaded guilty to voluntary manslaughter and conspiracy, a plea that could put each behind bar for 40 years. Judge Shelley Robins New set sentencing for Dec. 20.
A solution may not be that simple for Minehart in the Piazza case. In the Phillies case, only one defendant faced a first-degree murder charge which, if the death penalty is not an issue, carries a mandatory life prison term. The other two defendants were charged with voluntary manslaughter.
Unlike the Phillies case, which involved heavy alcohol use by all parties, the Piazza trial involves three men charged with felony murder. The only possible sentence is life without chance of parole and the suggestion of reducing charges for three men -- prosecutors say they conspired to rob and kill two people to take their drugs and cash – would seem a tough sell for the lawyers and a tough buy for the judge.