The Joplin Globe, Joplin, MO

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November 26, 2009

Missouri: Judge declares mistrial in murder case

The Associated Press

KANSAS CITY, Mo. — A judge has dismissed murder charges against a Kansas City man because a police detective made comments in his testimony that could have prejudiced the jury against the defendant.

Issuing his decision Wednesday, Circuit Judge Robert Schieber said prosecutors cannot retry 25-year-old Markus D. Lee on charges connected to the March 2007 drive-by killing of Eliseo Thomas.

The judge ordered that Lee — who had been in custody since the incident — be released

Prosecutors have not determined if they will appeal Schieber’s ruling and Kansas City police said they would reserve comment until they have reviewed the judge’s written order, which was expected to be released Monday.

Schieber granted a mistrial after police Detective Danny Phillips mentioned before jurors during cross-examination Nov. 12 that he had met Lee before, implying that the defendant had a criminal past. That could have prejudiced jurors against Lee, the judge said.

The judge said he believed the detective made the comment intentionally because the case was not going well for the prosecution and he hoped it would lead defense attorneys to request a mistrial.

Schieber said the mistrial was the result of governmental misconduct and trying Lee again would violate his constitutional right against double jeopardy.

“It is with a great deal of angst that I do this,” he said.

He added that he had to hold police to the same standards as attorneys to ensure a “level playing field” in the courtroom and that without a penalty police might be tempted to force a mistrial whenever a case “was going south.”

Lee’s public defender Molly Hastings said she appreciated that the police were being held accountable.

“They are not exempt from following the rules,” Hastings said.

Schieber said that following the mistrial jurors and alternates told him they were leaning toward acquittal and that the detective’s mention of having known Lee before made them believe Lee had been arrested previously.

Lee was charged with two others in the drive-by shooting that also wounded three others and led to a high-speed chase in which suspects fired guns at the pursuing police officers.

Two other defendants are awaiting trial.

Lee was acquitted in 2006 of charges that he killed a man during a 2002 block party and later killed a witness. During the trial in that case, witnesses who had initially identified Lee as the shooter changed their stories and said they didn’t see the shooting.

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