AUBURN – A slip of the tongue on the part of a veteran state police detective resulted in a mistrial motion being filed Thursday in Roger Keene’s manslaughter trial.
Keene, who also faces charges of kidnapping and attempted murder, is accused of beating Leslie Stasulis then leaving her to die in the eastbound lane of Route 126 in Sabattus on Sept. 12, 2003. Stasulis died nine days later.
During a second day of testimony by State Police Detective Warren Ferland, when he was detailing a conversation he had with Keene, Ferland said, “I knew he was on probation” and told Keene he could be facing serious issues in connection with Stasulis’ fate.
Almost immediately, Keene’s lawyer, George Hess, called for a sidebar – a chance to speak to the judge at the far side of the bench, where jurors couldn’t hear them talking.
He was joined by the prosecutor, Assistant Attorney General Lisa Marchese.
Presiding Justice Thomas Warren then called a recess and sent jurors out of the room. Once they were gone, Hess motioned for a mistrial based on Ferland’s reference to Keene’s probation.
Jurors aren’t supposed to be made aware of a defendant’s past criminal history. It could prejudice them. The judge noted that some jurors “may assume he’s a dangerous person.”
Keene was on probation in September 2003 as a result of convictions for domestic violence and terrorizing.
“I’m trying to figure out where we go,” said Warren as Hess, Marchese and the judge weighed the gravity of the situation.
“We should assume that one or more members of the jury” heard the reference to probation, the judge said.
And it added to an earlier concern raised by Keene through Hess.
Before the trial resumed Thursday morning, Warren had been told that Keene was worried about the impartiality of the jury’s foreman. The foreman knows some Sheriff’s Department deputies, Keene learned from inmates at the county jail. And as it turns out, the foreman also knows many Lewiston police officers, having participated in some community policing opportunities.
Warren said he questioned the foreman but was satisfied at that point that he remained unbiased toward Keene.
Still, the defendant wanted the foreman removed from the jury. The trial could have continued since the 14-member jury has two alternates.
Without a disqualification, the foreman’s presence could give Keene grounds for a future appeal if he’s eventually found guilty during the trial.
Warren said the earlier concerns, as well as the trooper’s mentioning Keene’s probation, were troubling.
Aloud, Warren pondered the possible.
Curative instructions’
He said the trial could continue without saying anything to jurors about probation, or he could instruct the jury to disregard the comment and give it no weight in deliberations. He could also offer specific instructions about the comment before the jury went to decide the trial’s outcome after the conclusion of evidence.
But Warren also said “curative instructions could be more harmful than good” since it would put emphasis on probation in the jurors’ minds.
In the end, Hess’ motion for mistrial was taken under study by Warren, and the case continued with Ferland’s testimony followed by others.
Before that testimony resumed, however, Warren questioned Marchese and Ferland about what steps they had taken to avoid mentioning Keene’s past record in court.
Marchese noted that some taped evidence and accompanying transcripts had been stopped before interviews were over so jurors wouldn’t be exposed to that information.
And Ferland called the slip, something he said he had been advised to avoid while a recruit at the State Police Academy, “a complete mistake on my part.”
A mistrial would result in the seating of a new jury, and a repeat of all testimony and evidence presented since Tuesday. Mistrials delay justice and add to trial costs. But they also protect the defendant’s right to have an impartial jury hear the evidence and decide guilt or innocence.
Warren could rule on Hess’ mistrial motion as soon as this morning. The trial is set to resume at 9.
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