Murder trial ends with mistrail because “prosecutor making strange faces”.

Erika Mendieta arrives at Toronto court on Nov, 2, 2009. Her first trial for the 2003 death of her daughter Emmily, 2, also ended in a mistrial.

Cold-blooded baby killer Erika Mendieta arrives at Toronto court on Nov, 2, 2009. Her first trial for the 2003 death of her daughter Emmily, 2, also ended in a mistrial.

Update: A new 3rd trial will happen but it will be a judge without jury trial. Hopefully this time they will get it right.

You know, I see my 2 yr old niece, so precious, and then I hear about these child killers/predators and what i know is that you got to be one cold hearted inhumane piece of shit to even raise your hand to a 2 YEAR OLD. You have to be a monster to beat a 2 yr old to death. This dispictable scum needs to be behind bars for a very long time which doesn’t happen in Canada. And why is she out on bail?  Only in Canada!

Something is just not right with this story. A 2 year old girl was murdered by her piece of shit parents but there’s a mistrial because the prosecutor was being intimidating making “weird” faces??? What is this? Some stupid scene from Law & Order?  Regardless, her parents shouldn’t even see the light of day, only in this country you’ll see people get away with murder.

The judge has declared a second mistrial for a woman charged with murdering her daughter after ruling that the prosecutor from her first trial had distracted the jury and intimidated the defendant.

Erika Mendieta’s first trial for the 2003 beating death of her daughter Emmily, 2, also ended in a mistrial.

“The events leading to this mistrial are extraordinary,” said defence lawyer Robin Parker, who put forward the motion for a mistrial on Nov. 16 before the jury had entered the courtroom.

The jury was informed of the mistrial Monday morning.

Mendieta’s second trial had begun to crumble the afternoon before, when the jury sent a note to Justice Nola Garton asking that a man they didn’t know – assistant Crown attorney Paul Alexander – be removed from the courtroom gallery.

“Dear Your Honour,” the note read. “We the jury would like to have a male individual removed from the courtroom. We find him very distracting, and he is making strange faces all the time. We feel very uncomfortable with him. He sits to your right, and has blond hair.”

A diagram of the courtroom accompanied the note, marking the spot where Alexander sat with an asterisk. “He sits here!” they wrote.

Alexander is the assistant Crown attorney who had prosecuted Mendieta when she first faced the second-degree murder charge in court last year.

He rose from his seat, quickly making his way to the door. He turned to the judge, and said he was leaving under “an abundance of caution.”

Mendieta took the stand in the jury’s absence last week, testifying that she noticed Alexander rolling his eyes, shifting awkwardly, and making “faces as I though was pretty much talking B.S.” during Crown attorney Allison MacPherson’s cross-examination.

“His look intimidated me a lot,” Mendieta said. “It made me feel very uncomfortable.”

Mendieta said Alexander was sitting right in front of a friend who had come to offer her support, and directly behind her counsel, so it was impossible for her not to notice the faces he made.

Mendieta said it made her nervous, and changed the way she answered questions. She said she didn’t know she had the ability to challenge his presence in court until the jury wrote the note.

“I knew right away it was him they were talking about,” she said.

Any actions Alexander made were hard to detect by people sitting in the gallery, although MacPherson, the lead prosecutor in the case, routinely looked back at him as she cross-examined Mendieta.

Hamish Stewart, a University of Toronto law professor, commended the actions of the jury.

“I think it shows how seriously they were taking their job, that they would draw this to judge’s attention,” he said.

Stewart added that that he’d never heard of a trial ending under such bizarre circumstances.

MacPherson tried to argue that Mendieta’s answers weren’t affected by Alexander’s presence in the courtroom. She said Mendieta was projecting Alexander’s opinion of her, because she felt attacked on the stand.

“A distraction is quite different than intimidation,” MacPherson said, arguing that students coming in and out of the courtroom all week had also caused disturbances.

Garton gave her ruling on Thursday morning, without the jury knowing that anything was going on.

She noted that Alexander’s actions were clearly not “intentional,” but “that all the jury member’s noticed it.”

They were distracted when Mendieta, whose credibility is a key issue, was testifying. Garton noted that the jury didn’t complain of just a single incident of rolling eyes, but that Alexander was “making faces all the time.”

“It’s not possible to know what part or parts of her testimony that they have missed,” Garton said.

Garton added that even if Mendieta exaggerated the effect Alexander’s facial expressions had on her testimony, “there can be no doubt that it had some impact on both her demeanour and show she answered questions under-cross examination.”

“After carefully considering this matter, I have concluded that declaring a mistrial is the only option,” Garton said. “This is indeed an unfortunate result for all concerned.”

Mendieta wept in court after the decision was announced without the jury present last week.

“She’s devastated,” Parker said of her client, who remains charged with second-degree murder and will eventually face a third trial. “A mistrial is not what anyone wanted.”

Last week’s decision to declare a mistrial was covered by a publication ban until the jurors could be located and returned to the court.

Alexander was not available for comment.

The ruling brought an end to a trial that was already overflowing with oddities, including a confession by Mendieta’s former boyfriend, Johnny Bermudez, that he accidentally killed Emmily.

Under the Canada Evidence Act, nothing Bermudez said as a witness can be used to prosecute him.

Bermudez claimed he wanted to make things right, but when he was asked if he would wave his rights, he refused. The Crown contended that it was Mendieta that beat the toddler so badly she went into convulsions.

Emmily’s bruised and battered body remained on life support for 10 days after she was attacked on Nov. 13, 2003. She died of severe brain injuries.

Emmily would have been 10 years old this January.