A judge refused to declare a mistrial in the Clayton Bear murder case, before sending the jury away to reach a verdict.
The issue arose from a dispute between the two defence lawyers over closing statements.
Mary McAuley, representing Jordan Herron, raised a concern about Lisa Trach, defence for Orren Johnson. On Monday, Trach compared her client’s case to the wrongful conviction of David Milgaard.
McAuley said drawing parallels with a specific, and notorious, case risks prejudicing the jury against her client. She called for a mistrial.
“I’m submitting that she was eliciting sympathy for Orren Johnson,” she said. “I’m submitting that this is highly prejudicial to the case, highly prejudicial to Mr. Herron.”
But Justice J.D. Kalmakoff disagreed. He found that the statement, while perhaps inappropriate, did not affect the right of both accused to a fair trial. Instead, he called in the jury and asked them to decide the case strictly on its own merits.
Kalmakoff then launched into his instructions, which lasted more than three hours.
He told the jurors to “be careful about relying on eyewitness testimony.” The Crown’s case, he pointed out, is based on witnesses who were severely intoxicated at the time of the offence and changed their story repeatedly during the investigation and trial.
Throughout his instructions, however, the judge was careful to point out that it’s not his job to decide who is telling the truth. That, he stressed, is the task of the jury.
“You, not I, decide what happened in this case,” he told them.
The jury then retired to reach their verdict.
For more on this story, please see the Feb. 15 print or e-edition of the Daily Herald.