A defense motion for mistrial with prejudice was denied Monday in the aggravated battery case of 24-year-old Joseph Messina, of New Lenox. A also denied an opportunity for a motion for a mistrial that would impeach the prosecution.
Messina is accused of punching a man to the ground in a bar fight and knocking his head against the pavement. Since then, Eric Bartels, 29, has remained unable to speak or see.
Will County Judge Sarah Jones said after having reviewed the testimony and case law provided, it became "very obvious" that both the state and the defense were unaware of photos pertaining to Messina's hands until June when police investigators indicated that they were part of the stream of evidence.
However, the judge found no reason to beleaguer the point. She considered the fact that no photos could be found; the memory card of all related photos had been erased by in accordance with basic practices, and that no other witnesses gave testimony that pertained to the condition of Messina's hands in the aftermath of the fight.
"I found no lack of due diligence" on the part of the state or Mokena police, she said.
She noted that having reviewed the testimony of several witnesses to the incident in which Bartels suffered severe head injuries, "nobody refers to (Messina's) hands."
Mokena Police Detective Greg Selin testified at a hearing in June that he thought he shot photos of Messina as part of the investigation; however, he couldn't remember if he had for done so for certain.
The photos and condition of the hands in the aftermath of the fight, according to defense attorney Ken Zelazo, should be considered crucial to the case. Last week, while Zelazo reviewed several minutes of video, he honed in the fact that 16 seconds of a two-hour video had been deleted. He said those 16 seconds are essential in terms of building a defense. He said it only makes sense that a man who just severely beat another would have wounds on his hands as well.
Assistant State's Attorney Michael Fitzgerald challenged Zelazo's logic. Last week, he said, "the state never said there was video of his hands."
The testimony of numerous witnesses in June 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.
No date has yet been determined to reconvene the trial, which started in June but was put on hold to investigate evidence related to photos showing the condition of Messina's hands. Since both the defense and the prosecution have other trial obligations, Jones set a hearing for 9:30 a.m. Aug. 27 to determine a date for trial.
Prosecuting Attorney Chris Koch said, "I'm happy to continue to move forward in the case." Zelazo, the defense attorney, declined to comment.