The aggravated battery case of New Lenox resident Joseph Messina, 24, who was accused three years ago on his 21st birthday of punching a Joliet man into a coma during a bar fight in Mokena, got a bit theatrical Monday at Will County Circuit Court in Joliet.
Will County Circuit Judge Sarah Jones said she would review the case and return Aug. 13 with a decision in regard to the motion for mistrial with prejudice.
For nearly an hour, the judge listened intently to both the prosecution and the defense team. The focus was on a defense motion for a "mistrial with prejudice," meaning the case is not eligible to be retried.
Previously there had been problems confirming the legitimacy of the photos recorded during the initial interview with Messina at the police station.
In April, Detective Greg Selin testified in court saying he had shot a photo of the defendant's hand that no one could seem to find. He later testified that he couldn't confirm whether or not he had a photo that precisely showed Messina's hands in the aftermath of the fight.
Messina is accused of punching Eric Bartels, 29, and knocking him to the pavement where he struck his head and went into a coma.
In court action today, defense attorney Ken Zelazo brought in a flat screen television to present evidence that 16 seconds of video was missing from the original recording. Those 16 seconds, he claimed, are key to the defense because it was the portion that would have showed the condition of Messina's hands after the fight.
Zelazo said the image of the hands would prove that Messina had not been the one to pummel Bartels into a coma. A bare-fisted fight of that nature would have resulted in bruises, cuts and abrasions on Messina's hands, according to the defense.
While discussing the recording that was shot in the booking room in July 2009 of the Mokena Police Department, Zelazo made a point to halt the video, flip it back and forth between frames and move it forward substantially. His voice was as impassioned as the plea he made on behalf of his client.
He said it only makes sense that a man who just severely beat another would have wounds on his hands as well.
Since those images are precisely the ones missing from the two-hour recording along with the fact that the original memory card is nowhere to be found, Zelazo asked the judge to base her decision on the exculpatory facts.
Prosecuting Attorney Michael Fitzgerald retorted saying, "the state never said there was video of his hands." The testimony in the spring of numerous witnesses never made reference to Messina's hands. The state is not contesting the notion that it has no evidence pertaining to Messina's hands. Fitzgerald said that evidence is not necessary. The witnesses have testified to the case against Messina.
When asked by the judge if the defense had pursued a line of questioning with the witnesses in regard to Messina's hands, Zelazo said no.
It wasn't until after the witnesses had testified that investigating police officers took the stand. That was the first time that the defense was made aware that police had recorded images of Messina's hands.
Zelazo said there was no opportunity for "cross-examination" of the witnesses who may or may not have been able to describe Messina's hands.
The judge asked Zelazo if he had an alternative request, besides the motion for mistrial with prejudice. After citing the matters of law that grant the judge the authority to disregard the request and/or respond with a motion of her own, Zelazo said he had no alternative motion in mind.
A motion for mistrial, which enables the state to bring the case to trial again, seems a waste, he said. The fact that the evidence has been destroyed or eliminated remains the same.
Zelazo noted that he was not accusing the state or the police of conspiring against his client. He noted, however, that it was opinion that the police did not apply due diligence in investigating the case or taking care of the evidence.
Fitzgerald explained that it is police procedure to print out photos from the video recording and then clear the memory card.