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Mistrial ordered in sexual assault case
Published October 16, 2009
A state district judge Thursday ordered a mistrial in the case of a man accused of having sex with his wife's 15-year-old sister.
63rd Judicial District Judge Henry Fernandez Thursday morning granted the defense motion for a mistrial in the case of Evodio Martinez, whose trial on a sexual assault charge started last week.
Neither Martinez nor his wife, Eloina Martinez, a key witness in the case against him, returned to court Wednesday following a five-day recess in the proceedings.
“I don't have anything new to report. There are a lot of people out there looking for him,” 63rd Judicial District Attorney Fred Hernandez told Fernandez moments after the judge called the courtroom to order at 9 a.m. Thursday.
“And obviously we're in the same position,” said James McDermott of the Texas RioGrande Legal Aid Regional Public Defender's Office, one of two attorneys representing Evodio Martinez.
Martinez was nowhere to be found when the trial resumed at 9 a.m. Wednesday. Also missing was Eloina Martinez, who had been on the stand when the court recessed on Thursday, Oct. 8.
Both the district attorney and the defense attorneys told Fernandez that multiple attempts were made to locate the Martinezes, but it was noted that the couple's two children had not been in school since Oct. 6 and it was widely believed the entire family had fled back to Mexico.
The district attorney on Thursday told the court that, in addition to the search for the Martinezes in the United States, law enforcement officials in Mexico had been alerted and were on the lookout for the missing defendant and witness.
Fernandez reviewed with the attorneys the steps taken after it became clear Wednesday that neither of the Martinezes would show up for court.
The judge then allowed the three attorneys to confer.
Following that discussion, McDermott told the court, “The defense re-urges its motion for mistrial. We are not able to cross-examine the witness (Eloina Martinez), and I don't see how we can move forward without the opportunity to do so.”
Fernandez then discussed the choices available to him. The judge noted he “must consider all lesser alternatives.”
Among those alternatives, Fernandez said, was delaying the trial until the witness could be found, but McDermott noted, “Nobody knows when she is going to be here.”
Fernandez also said he could instruct the jury to disregard Eloina Martinez's testimony because “the defendant's right to cross-examine is hampered because the witness is not here.”
During the discussion, Jerry Everett of Judy's Bonding informed the district attorney that Evodio Martinez had been located in Mexico.
The district attorney then reviewed the process by which Martinez, either with or without his wife, could be returned to the United States.
Hernandez said he “strenuously objected” to the option of disregarding Eloina Martinez's testimony. He told the court the Eloina Martinez's testimony was “critical to the state's case.”
Her testimony, Hernandez said, “corroborates what the defendant (Evodio Martinez) said in his confession.”
“I don't think it's possible for the jury to disregard her testimony,” McDermott argued.
McDermott also pointed out that Eloina Martinez's videotaped statement to law enforcement officers could not be used because, again, the defense has the right to cross-examine witnesses.
“Then do both sides agree on a mistrial?” Fernandez asked.
“I'm not going to take a position on that,” the district attorney said.
“I believe a choice has to be made. I don't think we have an option,” McDermott told the court.
McDermott then again made a motion for a mistrial, and Fernandez granted the motion.
Fernandez said he based his decision on the accused person's right to cross-examine witnesses and because the jury had already heard partial testimony from Eloina Martinez before the court recessed Thursday, Oct. 8.
Fernandez told the attorneys he would reset the case for another trial.
Fernandez then asked the jury to be returned to the courtroom, and he explained what he termed “the peculiar, peculiar circumstances” of the Evodio Martinez case and released them from their service with thanks and apologies.
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