When the ex-girlfriend of murder defendant Christopher Strawn blurted out a revelation of domestic violence during her brief testimony on the stand, she brought his homicide trial to a crashing halt. The jurors were immediately sent back to the jury room while Juneau Superior Court Judge Philip Pallenberg determined that there were grounds for a mistrial.
Now, defense attorney Eve Soutiere has moved for a permanent end to any criminal prosecution of Strawn in the October 2015 shooting death of Brandon Cook, asking for the case to be dismissed due to double jeopardy.
Typically, double jeopardy applies to a second prosecution for the same offense after acquittal or conviction.
But Soutiere is arguing that double jeopardy can also apply to a mistrial if it can be proved the mistrial was caused by prosecutorial overreach.
At issue is whether Assistant Defense Attorney Amy Paige adequately prepared her witness and cautioned her strongly enough against making that statement.
On Feb. 14, the day she testified, the woman was visibly nervous and emotional; she only made it as far as telling the jury she had been in a relationship with Strawn from 2007 to 2013 before she referred to domestic violence — an allegation that had been barred from testimony during the trial.
Soutiere had sought to block the ex-girlfriend’s testimony altogether, arguing that any evidence she might present about Strawn’s owning a gun was stale and that there was a “colossal risk” she would introduce evidence of domestic violence.
According to Soutiere, the witness was obviously volatile and Paige missed several opportunities to ensure she would follow the court’s instructions about limiting her testimony.
The woman appeared “shaky and timid,” Soutiere said, adding that after she was sworn in, she started to fall apart and then cry.
At that point, Soutiere approached the bench and objected to the testimony, but was overruled. When questioning resumed, the witness made the inadmissible statement about domestic violence.
“This was not a negligent rookie mistake and, at the very least, constitutes gross negligence on the part of the prosecution,” Soutiere wrote.
In a further pleading, Soutiere took her arguments one step further, raising the possibility that the prosecutor allowed the testimony in order to force a mistrial or introduce “demeanor evidence” in front of the jury. The witness’ evident terror, coupled with the knowledge of her relationship with Strawn and his possession of a shotgun, could very well have become the most important factor in the decision-making process for the jury, she argued.
“The state has claimed that they did everything in their power to prevent the witness from testifying in the manner she did. That is simply not the case,” Soutiere wrote. “The prosecutor should have seen this coming.”
In order to determine whether the witness was adequately prepared, Soutiere has asked for an evidentiary hearing, to include testimony from the witness and Paige, as well as the victim/witness paralegal who was present during their meetings.
Paige opposed Soutiere’s motion to dismiss, arguing she did everything in her power to prevent the witness from making any inadmissible statements and that there was no requisite element of intentional misconduct on her part.
According to Paige, after a status hearing in which the limitations of the testimony were hashed out, she met with the witness in person. Paige instructed the witness on the specifics of her testimony and outlined what questions she was to be asked — and the witness indicated she understood.
Immediately prior to the witness entering the courtroom, Paige wrote, she reiterated her instructions and made it clear the woman was only to testify to the questions and not to any domestic violence.
Paige claimed that the witness did become emotional but then appeared to compose herself, answering a series of limited questions “without further emotion and without elaboration” before mentioning the domestic violence when asked how long she lived with Strawn.
Paige argued that based on the witness’ behavior on the stand, there was no indication she would suddenly veer from the court’s instructions on limiting her testimony.
She said double jeopardy would only apply in cases of deliberate prosecutorial misconduct such as precipitating a mistrial in a case that is going badly, adding that “at the risk of sounding overly confident … the State would submit that the trial was going very well.”
For Pallenberg to prohibit a new trial for Strawn would only punish the victims in the case, Paige argued.
Strawn’s retrial currently is set to start with jury selection on Oct. 2, with a pre-trial conference set for Sept. 22.
Strawn, 33, faces charges of first-degree and second-degree murder, manslaughter, criminally negligent homicide, third-degree assault and weapons misconduct.
Contact reporter Liz Kellar at 523-2246 or liz.kellar@juneauempire.com.
