Attorney Scott Ehrenworth recently helped a client get a first-degree murder charge dismissed on June 9, 2020 after the Court of Appeals in Virginia ruled the lower court’s declaration of mistrial failed to fulfill the “manifest necessity” requirement and less drastic measures were available when dealing with an alleged lying witness.
Our client was indicted by a grand jury in 2017 on murder and firearm charges, stemming from a gang-related death of a Portsmouth man in 2007. While the prosecution called two witnesses who both testified against our client, the final witness called told the jury that the state’s two witnesses were attempting to get their jail terms reduced by testifying against our client.
The defense then asked if the final witness really knew our client and he replied, “No.” When it was the prosecution’s turn to interview the witness, they only asked him about his criminal record, rather than his relationship with our client.
The following day, the prosecution revealed they obtained video evidence, which showed our client and the final witness having met several times in the jail medical facility – in an attempt to undermine the credibility of his testimony. The commonwealth asked for a mistrial and Portsmouth Circuit Judge Kenneth R. Melvin granted the motion, concluding that the final witness “told a boldface lie to the Court.”
During a pre-trial motion to dismiss prior to the retrial, our client objected to the ruling based on double jeopardy grounds since there was no “manifest necessity” for the lower court judge to declare a mistrial because the prosecution had an opportunity to reopen its case and show the jury the video. Retired Virginia Beach Judge Frederick B. Lowe granted our client’s motion.
When the case went to appeals court, Attorney Ehrenworth argued:
“To allow a judge to grant a commonwealth motion for a mistrial based upon credibility of a witness during a jury trial is a strike against the criminal justice system. And to allow a prosecutor to gain the advantage of a second trial because they did not ask for the appropriate remedies tells prosecutors all over the commonwealth that their actions will not be held accountable. That is against public policy.”
The Court of Appeals unanimously ruled in favor of Attorney Ehrenworth and our client, affirming his dismissal and the fact that the mistrial failed to meet manifest necessity, according to the facts and circumstances of the case. Additionally, the Court of Appeals said that the trial court could have allowed the case to go to the jury and have the jurors determine the credibility of the final witness’ testimony.