Tearful prosecutor prompts mistrial

Opening in domestic violence case ‘crossed the line,’ judge says

September 4, 2008 - Updated: June 30, 3:54 p.m.

A prosecutor’s emotional and tearful opening argument in a domestic violence case prompted a Kootenai County judge to declare a mistrial Wednesday.

First District Judge Fred Gibler initially assumed Deputy Prosecutor Shane Greenbank’s voice was cracking because the prosecutor was “possibly forgetting some witnesses’ names.” Then, when Greenbank asked for a tissue, Gibler “assumed it was an allergy.”

But as Greenbank continued with opening arguments, Gibler became concerned that the prosecutor was emotionally involved in the case and that his behavior might influence jurors, according to minutes from Wednesday’s trial, in which Grant Gosch, of Coeur d’Alene, faces domestic violence charges.

Gibler said Greenbank “crossed the line,” according to transcripts of the proceeding.

Defense attorney Staci Anderson sought the mistrial, arguing that Greenbank, as a representative of the state, was behaving inappropriately.

“The state was crying during its opening statements and asking for a tissue,” Anderson pointed out. “If Mr. Greenbank is not ready to handle this case, then possibly another prosecutor can come down.”

Greenbank disputes any suggestion that he was crying. But he acknowledged that he tends to get emotional when prosecuting cases involving children.

“There was no intent to appeal to the passions of the jury,” Greenback said.

Court transcripts, however, quote Greenback as saying: “I did have tears running down my face, I did have snot running down my face.”

After the court recessed so Gibler could consider the motion for mistrial, Greenback said he wanted it on the record that he was not crying but that his voice was fluctuating. The prosecutor declined to comment on the mistrial.

According to the minutes, Gibler asked Greenbank to “get his emotions under control” during an aside with both attorneys.

“Mr. Greenbank continued to be emotional,” Gibler said.

The judge said Greenbank’s “emotional involvement with the case was affecting the jury” and that Idaho’s Court of Appeals has ruled in the past that such acts can prejudice a jury and be grounds for an appeal.

“In recent case the Court of Appeals has singled out the Kootenai County Prosecutor’s Office for appealing to the passions or prejudice of the jury,” Gibler said. “The entire system has a right to expect the prosecutor to conduct their case in a non-prejudicial manner.”

Reach Taryn Hecker at (208) 818-0054 or by e-mail at tarynh@spokesman.com.


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