DNA Case Shows Risk of Not Moving for Mistrial

State of Washington v. Giles (2016)

by David S. Marshall

A recent case in the Washington Court of Appeals shows the importance of moving for a mistrial to preserve full appeal opportunities.

Daniel Giles was tried and convicted for the murder of a nightclub dancer who worked at a club near his home. On appeal, Mr. Giles asserted that, by contravening a ruling in limine, an expert witness’s testimony on DNA evidence denied him a fair trial. He argued that, while the trial court did strike the testimony and issue a curative instruction, the court should have declared a mistrial, even though Mr. Giles’s counsel did not request one at the time.

The nightclub dancer was killed in the summer of 1995, evidently stabbed to death in her car. For several years thereafter, law enforcement was unable to link anyone to the crime. Finally, DNA testing identified a partial match between the DNA of Mr. Giles and the DNA samples taken from the dancer’s jeans, handbag, car steering wheel, and driver’s seat headrest. While these matches were consistent with a theory that Mr. Giles had killed the dancer, they did not conclusively prove he had done so. After an interview with police, Mr. Giles was arrested and charged.

Before trial, the judge, recognizing the DNA evidence did not present an air-tight case against Mr. Giles, barred the State’s DNA expert from testifying at trial that it was likely Mr. Giles had touched the dancer’s car and her other personal items. Rather, the expert could only testify that the DNA evidence was consistent with this conclusion.

At trial, however, the expert witness twice testified to his opinion that it was “likely” Mr. Giles had been in the dancer’s car at or around the time of her murder. This testimony violated the court’s ruling limiting his testimony, and defense counsel sought and was granted a curative jury instruction. The offending testimony was also stricken from the record. A mistrial was not requested at this time by Mr. Giles’s attorney, nor was the possibility of a mistrial raised by the court.

On appeal, Mr. Giles argued that, notwithstanding the remedies given by the trial court, a new trial must be awarded because the trial judge should have declared a mistrial, even though Mr. Giles’s attorney never requested one.

The Washington State Court of Appeals, Division One, found no error because Mr. Giles received all of the relief requested by his attorney at trial. A mistrial is only appropriate when the trial court had no adequate alternative to remedy the harm resulting from trial misconduct. State v. Gilcrist, 91 Wn.2d 603, 612, 590 P.2d 809 (1979). This standard was not met; the trial judge imposed appropriate remedies.

Also, the court noted, a party who does not request a particular remedy at trial forfeits the claim on appeal that the trial judge should have given that remedy. State v. Russell, 125 Wn.2d 24, 93, 882 P.2d 747 (1994). The appellate court concluded that to grant Mr. Giles’s appellate request would put trial judges in the impossible position of declaring a mistrial (without defense counsel’s request) based on a guess of what the losing side may argue on appeal.

There can be good reasons not to move for a mistrial. I believe such a motion should not be made without the defendant’s consent, after a consultation. Perhaps the defendant thinks he could not bear the strain of another trial. Perhaps he could not afford one. But this case reminds attorneys that the price of not moving for a mistrial can be steep.