The Waterbury Democrat., 1939-05-20


 two occasions by defense counsel in the Waterbury conspiracy trial last week, were the basis of considerable question as to What would be the possible procedure?"
 Legal experts agree that Judge Ernest A. Inglis, the presiding judge, would have to rule that some testi- mony or statement, prejudicial to the defense had been given by the state, in granting miStrial. The prejudice, it is understood, would have to be of the character as to become too indelibly impressed on the minds of the jury to be movable simply by the instructions of the presiding judge.
 In making threats of motion for mistrial, Attorney John H. Cassidy claimed last week that statements made by Special Prosecutor Hugh M. Alcorn were highly prejudicial. He did not, however, allow his mo- ton to go beyond the threat stages.
 A motion for mistrial could be made orally or in writing. It would be argued, if the court saw fit, in the absence of the jury.
 Pecora's Ruling
 The most recent case of a mistrial motion, which was successful, was that granted in New York by Judge Ferinand Pecora on tn. ground that a prejudicial question had been asked witness in the trial of James J. Hines, Tammany leader.
 Judge Pecora held that when Dis trict Attorney Thomas E. Dewey asked a question about Hines com- plicity in chicken racket, he went beyond his rights, concerning inter- rogation of witnesses in the Hines case. Hines was charged with aiding the lottery racket.
 The granting of a mistrial resulted in the holding of second trial, in which Hines was convicted.
 Denial of motion for mistrial is appealable immediately to the su- preme court of errors. In hypo- thetical case, should a judge deny motion for mistrial the defense coun- sel making the motion could imme- diately appeal to the supreme court.
 Whether the trial would continue or await the decision of the supreme court on the appeal of the mistrial motion would depend on the ruling of the trial judge.
 Should the trial court, on the other hand grant the mistrial, as in the Hines case, another trial would be necessitated.
 First of all, a new jury would have to be impanelled. In the Waterbury conspiracy case, eight weeks were required in that task.
 Undoubtedly, as in the Hines case, a new judge would be assigned. Judge Knox replaced Judge Pecora in that trial, following the mistrial mo- ton.
 Previous Status
 All the expense of the first trial was practically duplicated in the second trial, although the fruits of the investigation remained. In addi- ton, portions of testimony given by witnesses in the first trial were read into the record of the second trial, thus eliminating several witnesses.
 A mistrial, in effect, would restore the case to its status before the first scrap of testimony was taken.
 A review of the case of the State vs. Lawrence Ferrone, shows that the supreme court returned 1t twice to superior court for re-trial, because of prejudicial statements of States Attorney Hugh H. Alcorn, as well as for other reasons.
 In that case. which ultimately res suited in conviction and prison sen- tence for the accused, Benjamin Slade. counsel in the conspiracy case was attorney for the defense. There was no motion made for mistrial in that case, but on one occasion the trial fudge denied e motion that the case be taken from the jury and de- cided by the court. on the ground that prejudicial statements had been