Lawyer’s Eye Rolling Leads to Mistrial

The ongoing Ontario trial of thirty-four year old Erika Mendieta is her second trial for the beating death of her infant daughter Emmily Lucas, some seven years ago. The first trial resulted in a mistrial after Ms. Mendieta’s former boyfriend took the witness stand and testifying under the protection of the Canada Evidence Act, told the jurors he had killed the child. Of course, his testimony could not be used against him and the jury could not agree on a verdict.

Mendieta’s second trial began last month, but last week the Court declared a second mistrial after the jurors delivered a note to the trial judge advising her that a man in the courtroom was making faces, rolling his eyes and generally causing concern and distraction for the jurors.

A passionate citizen? A court watcher? No, it was the prosecutor, Paul Alexander, who tried the first case against Ms. Mendieta. Madam Justice Nola Garton informed the Crown and defence lawyers of the circumstances and granted a mistrial at the behest of Ms. Mendieta’s counsel.

During the mistrial application the accused mother of five, testified that she was also put off by Mr. Alexander’s behavior, as he watched her as she gave evidence. She said she felt intimidated and overwhelmed.

Needless to say, Mr. Alexander has been the subject of scorn among his peers and the Ontario media, and is awaiting his fate which some say should be the loss of his job.

Is it really that big a deal? The trial judge managed to avert a third trial by dismissing the jury and will complete the trial with judge alone, with the consent of the parties.

As a trial lawyer sometimes it takes all you have to force yourself not to roll your eyes, and to suppress facial expressions and sighs of frustration. Lawyers are, after all, just human.

Lawdiva aka Georgialee Lang

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