No Grounds for Mistrial, Judge in O'Brien Case Says

By Joseph A. Reaves
The Arizona Republic [Phoenix AZ]
January 29, 2004

A Maricopa County Superior Court judge ruled Thursday that there were not sufficient grounds for a mistrial to be declared in the hit-and-run trial of Bishop Thomas J. O'Brien.

Tom Henze, O'Brien's lead counsel, protested a line of questioning Wednesday afternoon in which prosecutor Tony Novitsky implied the bishop had been coached about how to deal with police. Henze said the questioning caused irreparable harm to O'Brien and insisted Judge Stephen A. Gerst declare a mistrial.

On Thursday, Gerst admonished the prosecutors, but said the line of questioning was not sufficient grounds to grant a mistrial. The court, he said, did not find any attempt by the prosecutor to "mislead the jury."

Gerst cited a legal precendent that said a mistrail should be granted "only when it appears that justice will be thwarted."

After his ruling, the judge called the jurors into the courtroom and gave them the background of what went on outside their presence. He told them he had "admonished" the prosecutor and instructed them to ignore both questions and both answers. He said there had been no evidence and he expected no evidence to show that O'Brien was coached about how to answer police questions before he was arrested

O'Brien is accused of leaving the scene of an accident that led to the death of 43-year-old Jim L. Reed on June 14 on a central Phoenix street. The defense admits O'Brien hit Reed and left the scene but says the bishop can't be convicted because he never knew he hit a person.What O'Brien knew or didn't know was at the core of Wednesday's uncharacteristically bitter confrontation, which came as Phoenix police Detective David Dehority was finishing more than four hours of questioning on the witness stand.

Dehority was the lead investigator in the case and one of four officers who went to O'Brien's home to arrest the bishop 36 hours after the hit-and-run accident. The officers found the windshield of O'Brien's car shattered.

Much of the questioning Dehority faced dealt with the transcript of a 40-minute recording he made the morning O'Brien was arrested. On that recording, O'Brien insists as many as 26 times, often without prompting from police officers, that he didn't know what he hit and failed to report the accident because he didn't know what happened.

Dehority testified he was suspicious of O'Brien's answers and thought the bishop was trying to hide something. "He is in denial here, and he is making up excuses," Dehority said.

O'Brien tells police on the recording that a close friend had called him the night before he was arrested and let him know police were investigating a fatal hit-and-run accident that occurred at the same time and place where his windshield was shattered.

Dehority said he thought O'Brien was hiding something because the bishop speculated on a series of things that might have shattered his windshield. First it was merely "something," Dehority said, and then a dog. Later the bishop said someone might have thrown a rock at his car. And still later, O'Brien says all he saw was a flash.

During cross-examination, Henze argued that those answers were consistent. He said the bishop merely speculated on different possibilities about what damaged his windshield but never wavered from the fact that he didn't know what happened.

Novitsky tried to use the consistency argument against O'Brien, asking Dehority if the bishop might have been coached about what to say before police arrived.

Henze, clearly furious, asked for a hurried consultation at the bench out of earshot of the jury. When it was over, Novitsky quickly finished his questioning of Dehority and Gerst dismissed the jury.Then the fireworks started.

O'Brien, his face flushed, left the courtroom with Melissa Berren, one of his attorneys.Henze then made an impassioned argument, accusing Novitsky of asking the coaching question "without a good-faith basis."Arizona's rules of evidence bar attorneys from asking questions if they know there's no basis to believe the information they are seeking is accurate. The rules are designed to prevent unfair, no-win questions like the oft-cited classic: "Do you still beat your wife?"

Novitsky argued he had grounds to ask the question because O'Brien says in the recording he knew the night before police arrived that a fatal hit-and-run accident had occurred at the time and place that his windshield was shattered. The bishop knew, too, that police wanted to question him. He acknowledges in the recordings that he received several phone calls the night before.

Those factors, combined with O'Brien's behavior and answers, Novitsky said, justified wondering whether the bishop may have been coached.


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