1:10 A.M. – Mohammed Javed will get his day in court – again.
After almost two weeks of testimony from more than two dozen witnesses and hundreds of items of evidence introduced, Lee Circuit Judge Edward Volz Jr. declared a mistrial Thursday in Javed’s murder trial based on questions and answers with one of the state’s last witnesses. Javed’s tentative retrial date is Sept. 13. He will remain in custody at the Lee County Jail.
“We will be prepared to take this case to trial again,” said Samantha Syoen, state attorney’s office spokeswoman.
Javed, 30, is charged with second-degree murder in the killing of his wife, Susan Vicars, in early 2008 in Lehigh Acres. He reported her missing Feb. 8, 2008, but her body wasn’t found until that April, around the time he was arrested in Buffalo, N.Y., on a bus to Canada. Just before noon Thursday, Assistant State Attorney Dan Feinberg was almost finished with his questioning of Lee County sheriffs Sgt. John Long, when a series of inquiries drew objections by Javed’s attorney, David Brener. The first was when Feinberg asked Long if, during his conversation with Javed, the defendant responded to a question about whether co-defendant Thomas Parker helped him kill Vicars. Long said Javed didn’t respond. He later clarified that Javed gave a response and he read it to jurors.
During a break in the action, Brener argued that because everyone has a right to remain silent, the implication Javed didn’t answer was a violation of his rights.
But more egregious, Brener said, was an exchange a few questions later. Feinberg asked Long if, when Javed was arrested, it was only after the detective reviewed evidence and interviewed other potential suspects, who were not arrested. Brener argued the implication was that others answered questions properly, while Javed did not and is guilty. “The jury could really come to the conclusion that the defendant didn’t satisfactorily answer while others did, and therefore he’s guilty,” Brener said after the hearing. “I had no choice but to ask for the mistrial.” Volz, in announcing his decision, said he was confident that had Javed been convicted, the Second District Court of Appeal would have returned it for a new trial. The judge implied a comment of his Thursday – when he told Brener in front of jurors that points the attorney was trying to make from a witness were “miniscule” – contributed to the decision. Brener asked for a mistrial then, although Volz denied it at the time.
“We’ve had a series of things that occurred – some of my actions, some of your actions,” the judge told attorneys. “I’m going to grant the mistrial.”
Feinberg said Long clarified the answer by reading a transcript of what Javed actually said, and he presented past cases to argue a mistrial wasn’t warranted. But the judge said his decision was final. “I’m not a real happy camper right now,” Volz said. “It’s what I’ve got to do.” The state paid to bring in almost a dozen out-of¬area witnesses – the tab for which isn’t clear – and almost two weeks of court and witness time on the trial. This isn’t the first time a murder case in Southwest Florida needed to be re-done to correct a mistake. Lee Circuit Judge Thomas Reese declared a mistrial in November 2008 on the first day of William Miller’s second-degree murder trial after a witness testified he asked Miller a question and didn’t hear an answer.
And in Naples in 1999, Reese declared a mistrial for Lenny Mardis because a bailiff told a jury foreman that jurors would be sequestered if they didn’t reach a verdict.