SOUTH BEND, Ind. (June 24, 2015) --The miscalculations of a federal agent probing the fatal Richmond Hill blast have forced St. Joseph Superior Judge John Marnocha to consider a defense motion to declare a mistrial in the double murder case of lead co-conspirator Mark Leonard.
Defense attorneys claim the Prosecution's failure to reveal the faulty statistics constitute an "ongoing pattern" of misleading evidence provided by the State.
"Hopefully we get to try this trial again and protect our client's rights," Defense Counsel Diane Black told the court when asked what she hoped to accomplish by the mistrial request.
Prosecutors theorize that Leonard put a massive five-person conspiracy in motion in the summer of 2012 when he began pushing girlfriend Monserrate Shirley to increase her insurance coverage in anticipation of a devastating house fire that would result in a $300,000 payoff by State Farm Insurance Company.
Jurors in a South Bend courtroom have heard testimony that natural gas regulators were removed or disabled, filling Shirley's home with enough gas to pack an explosive power of more than three tons of TNT.
Investigators found a compromised metal container and a damaged microwave oven leading them to conclude that a time-delay explosion in Shirley's kitchen set off the larger blast that obliterated 8349 Fieldfare Way, damaged or destroyed 80 homes at a loss of $4.4 million and took the lives of neighbors Jennifer and Dion Longworth.
A neighbor told jurors he saw two men leave Shirley's home and drive away in a white van hours before the explosion.
Dr. David Sheppard of the Bureau of Alcohol, Tobacco and Firearms first determined that it took 5.8 hours to fill Shirley's house with enough natural gas to fuel the blast.
Late last month, Deputy Prosecutor Denise Robinson told the Court she found she could not reconcile Sheppard's findings with the results of another study conducted by a Citizens Energy Group engineer and therefore sought some clarification.
"I'm the one that brought it up. I found it when I was consulting," Robinson told reporters after Judge Marnocha called off court for the day. "I made that clear on the record. The Defense had the same information that I had. I was looking at it as an attorney and I couldn't reconcile the two reports. I brought it to our experts' opinion or to see to their attention so that they could assess it. It took them a while to find it and as soon as they identified the issue I passed it along to the Defense."
A recalculation by Sheppard moved his window of excessive gas introduction up to three hours before the blast on that Saturday night.
"What we indicated in court, and I said on the record in court, was that the recalculation with the new flow rate still puts us within the same time frame where we were before," said Robinson. "It adjusts slightly that time frame but it still falls squarely within that Friday/Saturday time frame."
Black told the Court that her expert had been out of the country and had not returned to the U.S. until last Friday and she had not had time to brief him on the new findings, indicating she had often arisen at "four a.m." to work on the case.
"What are you asking for?" asked the judge. "What does it get you? If I grant a mistrial, are you going to argue he can never be tried again?"
"Its always a possibility," answered Black.
"It is clear in this explosion, 'ground zero' was 8349," said Judge Marnocha, referring to the Shirely home address on Fieldfare Way. "No doubt that is true. Based on what I've heard so far, it is clear the explosion inside that home was caused by natural gas. I haven't heard anything about another explosive device set off. Why does it matter that there is a different between 5.8 hrs and three hours as it relates to the cause of this explosion?"
The judge said that, based on the testimony he has heard thus far, it is clear that damage to the Richmond Hill community did occur and evidence presented so far indicated the gas level inside the home was raised by the removal of the step down regulator and that, "somebody did something with a canister in the microwave, and the two likely culprits at this point are those two peope who left the home or a thermostat that kicked on at some time."
Shirley told investigators that Leonard swapped out a thermostat in the house in the week before the explosion in the hope that it would trigger the blast.
"How does that affect how Mr. Leonard was involved in this case," asked Judge Marnocha in repsonse to the Defense motion. "There is abosolutely no evidence implicating Mr. Leonard at this point. How does this affect your defense that he was not involved?"
The Judge said the only evidence presented at this time was that Leonard was Shirley's boyfriend and that he was related to the white van, "which does not make a conspiracy."
"I just didn't fall off the turnip truck yesterday" said Judge Marnocha, referring to his assumption that there must have been some evidence of Leonard's guilt before his arrest in December of 2012 and that the State was ready to go to trial before Shirley's Plea Agreement to testify earlier this year. "Robert Smith is also icing on the cake."
Smith is an informant who was the go-between from Leonard to an undercover federal agent in early 2013 when the Defendant was charged with making phone calls from inside the Marion County Jail while attempting to hire a hit man to kill a witness.
"How does this affect his culpability in this case?" asked the judge. "Flat out he either did it or he didn't."
"We still have the same amount of gas, its just the flow rate doubled to equal the Sullivan report," said Robinson, referring to the Citizens Energy calculations.
"Its the 'So what issue?'" said Judge Marnocha. "How does this fact substantially affect Mr. Leonard's rights regarding his involvement in this matter? To this point I havent heard that."
Leonard's attorneys have made other mistrial requests that have been turned down.
They also told potential jurors during voire dire that their client was accused of trying to have a witness killed and that revelation spoiled the first day of jury selection.
Judge Marnocha has cautioned the attorneys to not reveal evidence prematurely or argue their case during early stages of the trial.