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PINELLAS COUNTY, FLA---Prosecutorial misconduct by the Pinellas County state attorney's office of Bernie McCabe has resulted in the reversal of a conviction for battery of a law enforcement officer.
The Second District Court of Appeals has thrown out the conviction of David Denmark and ordered a new trial due to the misconduct of assistant state prosecutor Frank Migliore and ruled that that the prosecutor's misconduct had denied Denmark a fair trial.
http://www.2dca.org/opinion/May%2017,%202006/2D04-5107.pdf
During the 2004 trial of Denmark before Pinellas County Court Judge Raymond Gross, the judge had repeatedly warned Migliore that he could not introduce evidence of Denmark's prior juvenile offenses.
Denmark was on trial on charges of battery on a law enforcement officer, depriving an officer of means of protection and resisting an officer without violence. When Migliore tried to introduce a record of Denmark's prior offenses into testimony, Gross told him that they were inadmissible.
"We're talking about events that are 18 to 20 years removed without specific spaces to tie them into the facts at hand [which] is appropriate", Gross warned Migliore. "They are not probative of the matter".
In its ruling vacating the conviction, the DCA said "Apparently unwilling to adhere to the trial court's ruling, the prosecutor twice thereafter questioned an expert about Mr. Denmark's juvenile legal problems. Mr. Denmark objected, the trial court reiterated its ruling and the prosecutor voiced his displeasure with the ruling. The prosecutor continued".
"We are compelled to express our concern with the prosecutor's unwillingness to follow the court's rulings", the DCA said.
Appellate Judge Edward C. LaRose wrote that Migliore's efforts "could only serve to unduly prejudice, mislead or distract the jury."
Judge Gross didn't escape the criticism of the DCA. Due to Migliore's refusal to comply with the court's order to stop introducing Denmark's prior offenses into the record, Maura Kiefer, his attorney, moved for a mistrial with Gross refused to grant. The DCA said the judge's refusal constituted reversible error because it should have been granted. 5-31-06
© 2006 North
Country Gazette
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