On July 9, 2012, the United States Court of Appeals for the Eighth Circuit upheld a lower court’s decision denying a mistrial in a North Dakota case in which defense evidence exhibits disappeared after the conclusion of the trial.
A North Dakota district court jury convicted John Fitzgerald Wallette of one count of aggravated sexual abuse of a child, in violation of 18 U.S.C. §§ 2241(c) and 1153. The court denied Wallette’s motion for mistrial or, in the alternative, a new trial, and sentenced him to 30 years in prison, followed by a lifetime of supervised release.
A grand jury indicted Wallette for the aggravated sexual abuse of his eight-year-old daughter, “B.W.” (Names are obscured in abuse trials where victims are minor children)
During the course of a three-day jury trial, the government offered evidence that in July 2008 the child reported to her mother that Wallette had sexually abused her with batteries.
At trial, on February 2, 2011, Dr. Stacy L. Slaughter testified in Wallette’s case. Dr. Slaughter testified that she “met with B.W. on two occasions to do psychological testing.” Dr. produced an 11-page report that the court marked as “Defendant’s Exhibit 32″ and admitted into evidence over the government’s objection. Both sides called experts to testify regarding B.W.’s medical examination.
Once the jurors received their final instructions and the lawyers presented their closing arguments, the jury left to deliberate, the district court judge instructed the lawyers to “look over the evidence that’s going to go in to the jury.” Off the record, the lawyers reviewed the exhibits with the deputy clerk of court and confirmed the presence of each exhibit that the court had received. The trial concluded on February 3, 2011. The jury found Wallette guilty of aggravated sexual abuse.
On Monday, February 7, 2011, the deputy clerk of court informed Wallette’s counsel that Defendant’s Exhibit 32 was missing. The clerk of court also stated that, after the verdict, a law clerk had discovered another exhibit among the personal belongings of one of the jurors. The district court never found Defendant’s Exhibit 32.
In his appeal, Wallette’s attorneys argued that the district court abused its discretion by denying his motion for a mistrial based on the missing Defendant’s Exhibit 32. The Circuit Court review for abuse of discretion included United States v. Gray, 369 F.3d 1024, 1027 (8th Cir. 2004). “[A] defendant is . . . not entitled to a new trial unless the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” United States v. Espinosa, 300 F.3d 981, 983 (8th Cir. 2002) “We give the district court broad discretion to grant or deny a motion for mistrial because it is in a far better position to weigh the effect of any possible prejudice.” United States v. Diaz-Pellegaud, 666 F.3d 492, 503 (8th Cir. 2012) “That the loss of a portion of the record made in the trial court may entitle an appellant to a new trial by order of the appellate court, we do not doubt.” Cochran v. United States, 34 F.2d 441, 441 (8th Cir. 1929) But “whether a new trial will be granted on that ground usually depends upon a variety of facts and circumstances.”
Wallette argued that “because there is no indication that the jury had Exhibit 32 and more importantly had the opportunity to review it during its deliberations, a new trial is required.” However the court disagreed with Wallette’s assertion that there is no indication the jury had the opportunity to review Defendant’s Exhibit 32.
In a sworn affidavit, the deputy clerk of court stated that she reviewed all of the exhibits with the attorneys and that “the complete set of confirmed exhibits received into evidence by the court were then handed over to the law clerk for transfer into the jury deliberation room.” The clerk stated in a sworn affidavit that she “received the trial exhibits directly from [the clerk of court] and immediately transported them to the jury deliberation room.”
According to her affidavit, the law clerk physically retained the exhibits “throughout the process of transferring them from the clerk of court to the jury deliberation room” and placed them “upon the table in the jury deliberation room.” On this record, we conclude it reasonable to presume that the jury had the opportunity to review Defendant’s Exhibit 32.
The opinion went on to surmise that “even if Defendant’s Exhibit 32 was not available to the jury during its deliberations, Wallette has not established that the omission prejudiced him. Moreover, such evidence is not particularly favorable to Wallette because it suggests that B.W.’s fantasy stories could be a coping mechanism for sexual abuse. Thus, Wallette has not met his burden of proving that the loss of Defendant’s Exhibit 32 after trial resulted in a miscarriage of justice, and the district court did not abuse its discretion by denying his new trial motion.
Sandy Kurtis wrote this article on behalf of the John N. Kitta & Associates law office. If you have been a victim of abuse or neglect, be sure to seek help from a certified attorney.
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