DELHI - A mistrial was declared in a rape case in Delaware County Court, Wednesday, June 26, before jurors had the opportunity to hear opening statements, due to the district attorney’s failure to follow court rules.
The jury, composed of 10 women and four men, was dismissed by Judge Gary Rosa at 1:48 p.m., after hearing argument and verbal requests for a mistrial or to prohibit the use of what was planned to be documentary evidence and witness testimony, by Public Defender Joseph Ermeti.
Ermeti argued that the district attorney’s office, prosecuting a felony charge of first-degree rape and sexual abuse, failed to turn over the alleged victim’s medical records until minutes before opening statements were scheduled to begin and failed to disclose witnesses. The medical records were ordered to be turned over by the district attorney’s office to Ermeti more than a year ago.
The failure to turn over evidence was compounded when Ermeti reviewed the last-minute medical records and discovered pages were removed by hospital personnel due to the “sensitive” nature of the information contained in the records, making the records both untimely filed and incomplete, Ermeti said.
Ermeti further argued that the district attorney’s office certified that certain legal requirements or regulatory standards were met, when they were not.
Defense
Ermeti argued for a mistrial or alternate relief, highlighting that the district attorney’s office failed to turn over crucial medical records despite a 2023 court order to do so. Ermeti stated that the records were only partially provided “a year and three months” after the order, which he said was “simply unacceptable.” The delay, he argued, prejudiced his client as it prevented an expert review of the records. “If I had the information, many of my questions would have been different,” Ermeti stated, indicating that the records would have impacted jury selection. Ermeti accused the district attorney’s office of “playing games” and requested that either the trial be declared a mistrial or the medical records be excluded from evidence. “At some point, you have to do the right thing,” he told Rosa.
“This DA has been playing games with you and these records from the beginning because they know you won't do anything about it - and they’ve been right so far,” Ermeti asserted.
“I’ve pointed out precisely what was missing and if you don’t grant a mistrial - which you should - and if don’t grant preclusion - which you should - at the very least you should grant time to get an expert witness,” Ermeti told Rosa.
“The proper remedy is dismissal,” Ermeti continued, accusing the district attorney’s office of lying.
Prosecution
In response to Ermeti’s requests for mistrial or preclusion of evidence, Assistant District Attorney Denise Kerrigan who took over prosecution from District Attorney Shawn Smith, said she has made continuous efforts to obtain the documents in question. She also stated that Ermeti was advised of one of the potential witnesses on May 9, but she did not find out about a surprise witness until June 24. “I didn’t discover her until prepping the other witness and sent out notice [to Ermeti] on the 24th. So he knew about her.”
Regarding the medical records, Kerrigan stated she provided the records as soon as she received them. Kerrigan argued the records were not in her possession so she was not obligated to provide them to the defense.
Kerrigan then asserted Ermeti should have subpoenaed the records himself and further argued Rosa should not declare a mistrial or delay the trial because she did not intend to call a witness who would testify about the medical records until Friday [in two days]. “He has plenty of time to review the records,” she said.
Beside those arguments, she further claimed the medical records contained “no new information,” and “there are no smoking guns.”
“I take personal offense [to the statement] that my office acted in bad faith,” Kerrigan said. “I have done everything in my power [to get the complete medical records].”
More argument and judge’s decision
After hearing arguments, Rosa cited case law, saying “Mr. Ermeti is correct, there was an order of this court directing the prosecutor to provide all medical records; and a year later these records show up?”
Kerrigan then asserted she was being penalized for not providing something she did not know existed and said if discovery laws in New York hadn’t been changed in 2020, she would have no obligation to provide the records until the start of trial.
Rosa responded to Kerrigan that the discovery laws are in effect.
Ermeti chided the district attorney’s office, saying, “The truth of the matter is nobody did a darn thing to get records until Kerrigan started preparing [the case for trial].”
“The DA’s office has been asleep at the switch and how dare she say giving me records today is ‘good enough’?”
“I’ve never seen a bigger miscarriage of justice than this,” Ermeti asserted. ”They [district attorney’s office] stonewalled. We got the run-around,” Ermeti continued.
In retort, Kerrigan asked, “Why should the victim be penalized? She deserves justice.”
His concern, Rosa said, is not just for the alleged victim, but for the accused defendant. It was “hugely prejudicial” to have medical records [evidence] sprung on the defense the morning of the trial, Rosa said.
What’s next?
Though Rosa did not specifically declare a mistrial, he released the jury from jury duty, thanking them for their service. Later in the day, Rosa issued a written decision stating his dismissal of the jury was equivalent to a mistrial and ordered Ermeti to submit a written request for action concerning the case, and gave the district attorney’s office time to respond in writing to Ermeti’s request.
