TAMPA — Attorneys for the Tampa man accused of throwing an infant from a car on Interstate 275 are arguing that prosecutors should not have another chance to retry him after a judge declared a mistrial last month.
In a motion filed in Hillsborough Circuit Court, Assistant Public Defender Mike Peacock asserts that mistakes made by the Hillsborough State Attorney's Office should bar further prosecution of Richard McTear, 25, who is charged with killing 3-month-old Emanuel Murray Jr. in 2009.
McTear's much-anticipated trial was abruptly halted when the baby's mother, Jasmine Bedwell, tearfully testified about threats McTear allegedly made toward the baby. A judge had previously ruled that the alleged threats — which were related to earlier charges of which McTear had been acquitted — could not be discussed at trial.
Bedwell testified that McTear had threatened to shoot her baby in the face and urinate on him.
Peacock asserts that Assistant State Attorney Ron Gale did not adequately prepare Bedwell for her testimony ahead of time.
"The highly inflammatory nature of the alleged statements could have and should have been anticipated by the state of Florida in the questioning of Jasmine Bedwell," the defense motion states.
In a written response, Gale says he "met for several hours" with Bedwell to prepare her for her testimony, but did not tell her to avoid speaking about McTear's threats to the baby.
He notes that Bedwell's statements were made on the first day of testimony in the trial, adding, "the state at that point had no motive to cause a mistrial and had nothing to gain by doing so."
Gale states in his motion that under Florida law, only intentional misconduct by prosecutors — rather than inadvertent mistakes — prevents the retrying of a case after a mistrial.
Circuit Judge William Fuente has said he plans to issue an order after giving defense lawyers time to submit more arguments. McTear's new trial is currently scheduled for July 2014.
John Trevena, a criminal defense attorney in Largo, said he doubts that Fuente will find the defense's argument persuasive. The State Attorney's Office cannot necessarily be blamed, he said, for Bedwell's unpredictable testimony.
"Both prosecutors and defense lawyers, we can only do so much with our witnesses," Trevena said. "We can't control what they say, and they sometimes disregard our advice."
McTear is charged with first-degree murder, aggravated child abuse and other offenses. If convicted, he could receive the death penalty.
Prosecutors say McTear attacked Bedwell, his then-girlfriend, and threw her baby (not his son) across the room in May 2009. He then drove off with the boy and threw him out the window on I-275 near Fowler Avenue, according to prosecutors.
Peter Jamison can be reached at firstname.lastname@example.org or (813) 226-3337. Follow him on Twitter @petejamison.