Mistrial In Mohammed Javed Homicide Case: Javed's Defense Lawyer Lays The Record Straight

During the last and final of thirty five state witnesses called to the witness stand by the prosecution in the two week trial of Mohammed Javed, the prosecutor attempted to elicit from the lead detective, John Long, that the detective applied for an arrest warrant, that Javed was indeed arrested, and that noone else was arrested for the murder of Susan Vickars. The assistant state attorney even framed the question to the effect of " after reviewing all of the evidence in the case and the statements of all of the witnesses who were interviewed, isn't it true that only Mr. Javed was arrested in this case for the murder?" The fact that someone has been arrested for a crime is normally irrelevant, but it may become relevant when the arrest is offerred to prove an issue unrelated to guilt, as for example, the identity of the person in the courtroom, or the location of the arrest when the prosecution has alleged, as it did in the Javed case, flight showing consciousness of guilt. In each of these permissible inquiries, the prosecution is not permitted to argue or suggest that the defendant is guilty merely because he was arrested, nor is it allowed to elicit that the detective made in essence a decision as to who is guilty and who is not guilty after reviewing the entire case. This is tantamount to a presumption of guilt, rather than a presumption of innocence, as a result of a mere accusation. More importantly, it constitutes insidious opinion evidence as to who the guilty party is, and asks the jury to rely on the opinion of the officer as evidence of guilt, an improper and unconstitutional request. In his zeal to seek a conviction, the prosecutor also tread into the dangerous area of asking the detective to paraphrase the defendant's responses to specific questions, which provoked his conclusions regarding whether the defendant satisfactorily answered the questions, and several statements that the defendant did not answer at all. While there may be debate about whether, once a defendant waives his rights and agrees to speak to law enforcement, his refusal to respond to specific questions is admissible, when the alleged failure of Mr. Javed to answer was combined with testimony that the other suspects gave statements, and that after those statements and Javed's statements were considered, only Javed was arrested, the implication was clear: Javed is guilty and the other suspects are not. This was extremely prejudicial for two separate reasons. First, the entire defense was that the police focused impetuously on Javed, the Muslim husband, and ignored other potential and likely suspects. Second, in reality, Javed answered all the questions posed to him on five separate occassions, and consented to a search of his home, computer, DNA, and provided witnesses and possible suspects to the investigators. As articulated in a previous posting on this blog, Mohammed Javed may well be innocent. Thus, the improper lines of questioning of the prosecutor, and the improper responses of the lead detective, the last and final witness, was calculated to, and did lead to the potential for great prejudice to Mr. Javed, and a mistrial was the appropriate action for the learned judge to take.