(ran State / Suncoast edition of Metro & State)
A judge declared a mistrial Thursday in the trial of Louis J. Giannola, the man accused of a hate crime for putting a hangman's noose around a black teenager's neck.
Judge Tim Peters said he decided to end the trial out of an "abundance of caution" after Giannola's defense attorney, Sami Thalji, complained that prosecutors didn't tell him about inconsistencies in a witness' statement in a deposition.
Prosecutors plan to take the case to trial a second time. A pretrial hearing is set for Oct. 6.
But defense attorneys said they will consider asking Peters to dismiss the charge because of what they said could be misconduct by prosecutors.
Giannola's defense would have to show that prosecutors knowingly withheld evidence to prove misconduct, which is rare.
"It's certainly suspect," said Barry K. Taracks, president of Thalji's firm.
But prosecutors said if information was not shared with Thalji before trial, it was inadvertent.
"Nothing was intentional," prosecutor Scott Rosenwasser said. "We're all professionals. For the defense to even allege we withheld evidence is absolutely preposterous. There is no prosecutorial misconduct in this case."
Giannola, 19, is charged with felony battery with prejudice, also known as a hate crime. He is accused of placing a noose around the neck of Dionte Hall at a Largo Wendy's restaurant in January.
Hall, now 15, took off the noose and threw it back at Giannola, who left the restaurant. Giannola, who is of Puerto Rican-Italian heritage, said the incident was a joke to collect a $10 bet offered by a biracial teen outside Wendy's.
Hall, who attends Largo High School, was sitting in Wendy's with two teammates on his basketball team. Hall and one of the teammates, Michael Stewart, testified Wednesday that they heard someone yell "I hate all n------" as Giannola left, though they couldn't tell for certain who said it.
But the third teen at the table, Jason Cantone, has told conflicting stories about what he heard. He initially didn't mention hearing the slur in a written statement to police.
But in an initial interview with prosecutors, Cantone, 15, said he heard Giannola say the racial slur as he left the restaurant.
Months later in a pretrial deposition with Thalji, Cantone said he didn't hear Giannola say anything after he put the noose around Hall's neck.
On the witness stand Wednesday, Cantone told jurors that he did hear Giannola say the slur.
That statement came as a surprise to Thalji, whose defense strategy revolved around proving that Giannola committed the act as a joke, not out of prejudice.
A big part of that strategy was showing jurors that none of the basketball players could say with certainty that Giannola said the slur. To suddenly have a witness testify that they heard Giannola make the remark unfairly pulled the rug out from Giannola's defense, Thalji said.
"We had no idea it was coming," he said.
Before the second day of testimony was set to begin Thursday morning, Thalji asked for the mistrial. Cantone was summoned from school to clarify his statements. He said he didn't tell Thalji about the racial slur in the deposition because he was nervous.
Thalji told Peters that prosecutors had a responsibility to tell him of Cantone's previous claims before the trial began. Through the discovery process, prosecutors are required to provide all evidence to the defense.
Because the case is still in progress, Rosenwasser declined to say why prosecutors didn't tell Thalji about Cantone's previous claims. But he said there is at least one other witness who heard Giannola use the racial slur.
"For him to say, "Wow, this is the first time I heard anyone say my client said something racially motivated as he left the restaurant,' that is not true," Rosenwasser said.
Giannola still denies ever using the slur.
Nick Cox, a professor at Stetson University College of Law, said prosecutors do sometimes inadvertently fail to share all information with the defense.
"Some of these cases can produce an incredible amount of paperwork, and sometimes things do get overlooked," said Cox, who worked for 10 years as a prosecutor in Tampa.
"I would say that's not unusual and that's not intentional. When you have a lawyer that is handling hundreds of cases at a time mistakes happen, and all you can do is try to honestly deal with them and hope it all turns out well."
Cox, a veteran of more than 150 trials, said it has happened to him once or twice in his career.
"I've been in situations where I've gone, "Aw, shoot, I didn't tell you that?' " he said.
After Peters declared the mistrial, Hall's parents, Christopher and Cheryl, sat in the back row of the courtroom with their arms crossed. They looked upset, but they declined to comment as they left.
Dionte Hall was not in court Thursday. He was in school.
Before the trial began, Giannola rejected a plea deal from prosecutors involving six months of jail time and four years of probation. If convicted of the third-degree felony, he faces a maximum of five years in prison.
Thalji said he will consider a number of trial strategies. He now will have to contend with a potentially powerful state witness who can attribute a racial slur to his client, but whose credibility may be weakened because of his previously inconsistent statements.
Cox said the mistrial also provides Thalji insight into how prosecutors want to tackle the case, which could be to Giannola's benefit.
"Now he gets a second bite at the apple," Cox said. "And he's got more information than he did before. And information is good."