Richmond Hill trial: Judge rules no mistrial

South Bend courthouse

Judge John Marnocha ruled against a mistrial Thursday morning in Mark Leonard's Richmond Hill trial.

The defense team argued for another mistrial Wednesday morning, but Marnocha said he wanted more information before ruling.

The prosecution withdrew their expert witness Thursday morning, removing the need for a  mistrial. But, the defense said they would move forward with their motion for a mistrial anyway.

The motion was in light of one of the state's expert witnesses, Dr. David Sheppard with the Bureau of Alcohol Tobacco and Firearms (ATF), changing his calculations regarding how fast gas flowed into Monserrate Shirley's home on the night of the explosion. His original calculations were used to determine the time frame for when the gas leak could have started, which the State could use to tie Mark Leonard to the crime.

Defense attorney Diane Black told Judge Marnocha outside the presence of the jury that "our client has been placed in peril" because the State knew about the error in Dr. Sheppard's original calculations as early as May 27, but did not notify the defense team until June 12.

Robinson confirmed she reached out to Sheppard around May 27 to ask for clarification on his report. She said she had trouble reconciling some of the facts in his original report for the ATF and the facts written by Michael Sullivan in a report for Citizens Energy Group, so she wanted help understanding what the correct calculations were. She argued that not only did the defense have both of those original reports in their possession, they hired an expert witness of their own who also had access to the reports. Because of that, as far as she was concerned, there was no need to say anything to the defense until Sheppard was able to confirm there was an error with his original calculations.

"We didn't know what to pass on to the defense," Robinson told the judge. "At the end of May, there was nothing to tell defense counsel."

After speaking directly with Sullivan, Dr. Sheppard sent an e-mail to prosecutors on June 12 confirming that an error had been made in his original calculations, but, according to Robinson, couldn't say yet what exactly the issue was.

Since an error of some kind had been confirmed, though, Robinson said she forwarded that e-mail to the defense team within minutes of receiving it herself. Black confirmed receiving the e-mail on June 12, but said the time and date information from Dr. Sheppard's original e-mail to prosecutors had been removed so she could not confirm when he sent it.

Sheppard didn't submit his final corrected report until June 19.

What it boiled down to is this: Dr. Sheppard originally said gas would have needed to start flowing into the house between 5.8 and 17.4 hours before the explosion (roughly 5:45 a.m. - 5:00 p.m. based on the 11:10 p.m. explosion time). The new calculations show that window was actually between 2:00 p.m. - 8:15 p.m. (roughly 3-9 hours beforehand).

Denise Robinson says the altered time frame does not affect the prosecution's theory of the case or Mark Leonard's involvement in it.

Judge Marnocha then asked how the change affected the defense, because "there has been absolutely no evidence [presented to the jury so far] that implicates Leonard whatsoever." Black said it affects upcoming testimony and strategy, but also places doubt on previous testimony.

Black said their concerns about the changed calculations along with questions they have raised throughout the trial combine to rise above matters of evidence to the level of violating Leonard's constitutional rights to due process, which is why she asked for a mistrial.

Judge Marnocha went back into his chambers to consider the request for roughly 10 minutes. When he returned, he said he wasn't ready to make a decision.

"It is premature at this point for me to make a final decision on the defense request [for a mistrial]," Judge Marnocha said upon returning to the courtroom Wednesday.

Neither side had brought any examples of case law proving why he should rule in favor or against the mistrial request, so he instructed both sides to prepare briefs and be ready to argue their case starting at 9:00 tomorrow morning, specifically answering the "so what?" question.

"How does [Dr. Sheppard's altered information] substantially prejudice Mr. Leonard's rights as it relates to his guilt and his involvement in this matter? At this point, I haven't heard that, and that's what I want to consider [Thursday] morning."

Judge Marnocha then brought the jury into the courtroom (for the first time all day) but remained vague as to what was going on.

"In longer cases, there are things that I have to do that sometimes come up," he told the panel. "I do have a couple of things I absolutely have to do today. We cannot proceed with evidence today because of the things I have to do."

He then adjourned court for the day.

Attorneys returned at 9 a.m. Thursday to argue their case on the request for a mistrial.

"I am very thankful the judge took this seriously - like we do - and given us time to fully brief this and make sure our client's rights are protected," Diane Black told the media after court was adjourned.

"I think what the judge did is a smart thing," Denise Robinson added in a separate press conference. "I think what the judge is doing is giving the defense the additional time to consult with their experts....They indicated their expert had been out of the country and I think what the judge is doing is protecting the record and giving them some time. I support that."

When asked about the accusations levied by the defense, Robinson said, "I am the one who brought [the wrong calculations] up....I brought it to our expert's attention so they could assess it. It took them a while to find it and as soon as they identified the issue, I passed it along to the defense. And that is the right thing to do. We don't hide the evidence."

Prominent Indianapolis defense attorney Jack Crawford says the motion for a mistrial.. in a case going into its third week is very unusual.

"I think the judge will deny the mistrial motion. I think he will find that whatever this new evidence is, it doesn't change a lot of the prior testimony and the jury can separate out any differences in the expert's opinion and the defense will have a chance to cross-examine that expert and have a chance to bring in their own expert to talk about the gas flow in the house," said Crawford.

He added, "It would be a surprise if the judge granted the motion. What that would mean is both sides would have to go back, start from square one, probably months down the road and the Mark Leonard trial would be delayed substantially."

Jurors were instructed to be ready to go at 10 a.m., should the mistrial be denied.