By paNOW

Lawyer calls for mistrial at conclusion of P.A. murder trial

Feb 14, 2017 | 4:53 PM

At the murder trial of two Prince Albert men, one of the defence lawyers applied for a mistrial based on a reference to David Milgaard made by the other defence council during her closing statement.

Jordan Herron, 23, and Orren Johnson, 28, are charged with first-degree murder for their alleged involvement in the April, 2014 shooting death of 17-year-old Clayton James Bear. Their trial has been ongoing at Prince Albert’s Court of Queen’s Bench since Jan. 23. 

Mary McAuley, who represents Jordan Herron, called for a mistrial this morning based on the closing statement of Lisa Trach, who represents Johnson. In her closing argument Monday, Trach used the famous wrongful conviction and exoneration of David Milgaard’s murder case as an example to warn the jury of the dangers of a potential wrongful conviction.

“It’s okay to make a passing reference [to the potential of a wrongful conviction],” McAuley said. “Referring to specific cases, drawing parallels, is not.”

McAuley said she was “quite concerned” the jury heard references to Milgaard, which she referred to as “one of the most notorious cases of wrongful conviction in history.”

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McAuley said the situation called for “very, very clear instructions to the jury” if a mistrial was not declared. “There needs to be very strict wording,” she said.

“I was simply referring to the facts of Milgaard,” Trach said. “It is common practice.”

Trach defended the reference further, noting any concerns about wrongful conviction would apply equally to both accused men, and would not prejudice the jury to favour either defendant.

Judge Jeffrey Kalmakoff reviewed the two sample cases presented by McAuley before concluding the Milgaard reference was not enough to constitute a mistrial.

“Reference to specific cases [regarding wrongful conviction] is generally not appropriate,” Kalmakoff said. “It is something that requires a corrective instruction.”

In his instructions to the jury, Kalmakoff emphasized that the 12 jurors are required to decide the case based only on the evidence presented at the trial.

“It is not appropriate for you to decide this case based on what happened in some other case,” Kalmakoff told the jury.

The jury retired to begin deliberations this afternoon. Visit paNOW for updates on the verdict.

Taylor.macpherson@jpbg.ca

On Twitter: @TMacPhersonNews

EDITOR’S NOTE: As this case still remains before the courts, commenting on the story will be closed.