Richmond Hill trial: Judge denies mistrial

Mark Leonard

Judge John Marnocha denied the defense's motion for mistrial during a Thursday morning hearing.

One of the State's expert witnesses changed his calculations regarding how fast natural gas flowed into Monserrate Shirley's home on the night of the explosion in November 2012. Defense attorneys asked for a mistrial saying they had not been properly notified of the changes.

Wednesday morning, Judge John Marnocha asked both sides to prepare briefs and be ready to argue their case for why the mistrial should or should not be granted but prosecutors apparently took a different approach - and simply dropped the witness entirely. Deputy Prosecutor Denise Robinson said Wednesday when the motion was first raised that the change in the expert's calculations did not affect their theory of the case or ability to prove Mark Leonard's guilt in the explosion.

At Thursday's hearing, she re-iterated that position and said, "After consideration of the gas flow evidence [Wednesday] and what had been provided to Citizens Energy Group, and what Citizens will provide in later testimony...we are dropping Dr. Sheppard as a witness."

Even with Dr. Sheppard dropped as a witness, Diane Black argued that the way the error to his calculations was handled represented prosecutorial misconduct to the point it warranted a mistrial, and moved forward with their motion anyway, saying, "Even if Miss Robinson didn't know the extent or the final ramification [of the error in Dr. Sheppard's initial report], she knew something was amiss and could have notified us and the court."

Black argued that Mark Leonard's right to a fair trial had been compromised because she had to cross-examine several witnesses without the benefit of seeing Dr. Sheppard's final report or being able to consult their own expert. Further, she said that even the adjusted report did not take into account how much natural gas may have leaked out of the house through window panes, door frames, etc. so even the "correct" time frame he provided was not entirely accurate.

She also said their own expert can't weigh in on the new report because new computer modeling takes weeks, even a month to complete. That means he cannot testify in this case unless a continuance is granted.

"It's not the prejudice," she argued, "it's the process." The defense spent two and a half years preparing for this case, Black said, and this change forces them to redo everything in 24 hours. Looking back, she said she would have also structured her opening statements differently had she known this new information.

In the end, she argued the burden should be on the State to prove they did not make mistakes in the handling of Dr. Sheppard's calculations, not on the defense to prove the mistake was big enough to legally place Leonard in "grave peril."

"It is the State who should be held to task for this," said Black.

She concluded by adding, "Any verdict is circumspect because of this," and asked for a mistrial with prejudice.

Denise Robinson then stood and told the court, "I'm hard pressed to even say [the defense's argument] is disingenuous. What I will say is that it's full of lies."

She largely supported Black's timeline of events, but took issue with the way it was characterized. She said the communication she had with Dr. Sheppard in May did not confirm that an error had been made, just that he felt it would be prudent to look back over his report and speak with Sullivan regarding his own results.

"It all came to a head on June 12, and that's when I forwarded the e-mail."

Robinson confirmed she did deliberately remove some information from that e-mail, but only to protect personal e-mail addresses of others who had been involved in the e-mail chain. She insisted that Dr. Sheppard's message was left in-tact in its entirety.

Speaking to Ms. Black's concerns regarding Dr. Sheppard's new calculations not providing an accurate time frame for the gas flow starting, she said, "Leakage does not allow any expert - prosecution expert or defense expert - to fully testify to an upper flammability range within the house....They can make certain assumptions, and that's something that has been known to the defense for some time, in fact she cross-examined about that."

Robinson concluded, "There's no validity for a discovery violation, much less mistrial. There's no basis for the allegation that the State misled the defense or misled the Court."

Judge Marnocha said the timeline that was presented regarding how Robinson handled the calculations mistake not only didn't prove a violation of Robinson's responsibilities, it proved that she acted exactly as she should have.

"I cannot, based on the facts I have heard...find that there was any deliberate suppression of evidence," the judge said. "A change occurred, an expert witness erred."

He denied the mistrial, finding no prosecutorial misconduct.

"Nothing I heard today or yesterday...shows that Mr. Leonard has been placed in a position of 'grave peril'."

Court was recessed for 10 minutes then the jury will be brought back in to continue hearing testimony.