Judge denies mistrial in NAU shooter case, proposes 'curative instruction' to jury

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Judge Dan Slayton and NAU shooting suspect Steven Jones (Source: 3TV/CBS 5) Judge Dan Slayton and NAU shooting suspect Steven Jones (Source: 3TV/CBS 5)
The jury got the case Tuesday. Wednesday was supposed to be the first full day of deliberations but that did not happen. (Source: 3TV/CBS 5) The jury got the case Tuesday. Wednesday was supposed to be the first full day of deliberations but that did not happen. (Source: 3TV/CBS 5)
Steven Jones, suspect in NAU shooting (Source: 3TV/CBS 5) Steven Jones, suspect in NAU shooting (Source: 3TV/CBS 5)
Coconino County Superior Court Judge Dan Slayton (Source: 3TV/CBS 5) Coconino County Superior Court Judge Dan Slayton (Source: 3TV/CBS 5)
Prosecutor Ammon Barker (Source: 3TV/CBS 5) Prosecutor Ammon Barker (Source: 3TV/CBS 5)
FLAGSTAFF, AZ (3TV/CBS 5) -

The judge in the trial of suspected Northern Arizona University shooter Steven Jones denied a defense motion for a mistrial Thursday morning and proposed what he called a "curative instruction" to the jury.

[Jump down to curative instruction]

Jones, who claimed he fired in self-defense, is charged with first-degree murder. If convicted, he faces life in prison.

The jury got the case Tuesday. Wednesday was supposed to be the first full day of deliberations but that did not happen.

Instead, Coconino Superior Court Judge Dan Slayton sent the jurors home and called an impromptu hearing to address something the prosecutor said that could influence the jury’s decision.

[RELATED: Jurors in trial of suspected NAU shooter send home Wednesday]

The issue was a statement made by the prosecution during closing arguments that the judge feels gave jurors a false impression about when Jones started making claims of self-defense.

During closing arguments Tuesday, the prosecutor said Jones didn't start saying he thought the group of students outside the party was going to "kill" him until he was sitting down with an officer for an interview.  

The defense had taken issued with the timeline presented by the prosecution on Tuesday, but the judge let it go.  By Wednesday morning, the judge told counsel he checked court transcripts and found the prosecutor's statement to the jury "patently inaccurate."

"My concern is that the jury is left with the impression that he never made any statements that could legitimately be argued as giving him a justification for the actions that he took that night," Slayton said.

The judge said the jurors would not do any more deliberating until the issue is resolved.

[SPECIAL SECTION: NAU shooting]

The prosecution and defense had to write up how they think Slayton should handle this problem, but the judge feels this can be fixed without declaring a mistrial.

Although he denied the mistrial, Slayton was adamant that the issue needed to be addressed with the jury. To that end, he proposed providing the jury with a curative instruction.

TheLaw.com's online dictionary defines a curative instruction as a "judge's instruction given to a jury in order to correct a previous error of instruction or a jury’s misunderstanding."

Slayton read his proposed verbiage into the record and then gave lawyers for both sides an opportunity to suggest edits.

[WATCH: Judge Dan Slayton proposes 'curative instruction' to jury]

"Members of the jury, the court has determined that a statement inadvertently made by Mr. Barker during the prosecution's initial closing argument was inaccurate. The statement is as follows: 'Now it wasn't until later, of course, when he had an audience with the police in a police station, on the record, that he started talking about, "Well, these people were trying to kill me."'" You should be informed that Mr. Jones made the following statements while seated in Officer Parks' patrol car and prior to his interview at the Flagstaff Police Station. One: 'Why were they trying to hurt me?' Two: 'I thought I was going to die.' You are to consider these statements as evidence. As such, you are free to accept these statements in whole or in part and to give them as much weight as you feel they deserve."

[Back to where you left off reading]

Both the defense and the prosecution offered changes to the language that they wanted to see, but the final instruction remained largely the same.

"Here's what I'm going to read to the jury," Slayton said after listening to both sides.

"Members of the jury, the court has determined that a statement inadvertently made by Mr. Barker during the prosecution's initial closing argument was inaccurate. The statement is as follows: 'Now it wasn't until later, of course, when he had an audience with the police in a police station, on the record, that he started talking about, "Well, these people were trying to kill me."'" You should be informed that Mr. Jones made the following statements while seated in Officer Parks' patrol car and prior to his interview at the Flagstaff Police Station. One: 'Why were they trying to hurt me?' Two: 'I thought I was going to die.' You are reminded that the lawyers' statements are not evidence. You are to consider these statements in light of all the other evidence.  As such, you are free to accept [or reject] these statements in whole or in part and to give them as much weight as you feel they deserve."

The "or reject" was added after one of the lawyers pointed out that "accept or reject" mirrored the original instructions to the jury.

Slayton then had the jury brought in and read them the revised curative instruction.

Once that was finished, Slayton ordered the court in recess pending the jurors' deliberations.

What is a mistrial?

“Mistrials are trials that are not successfully completed,” explains the American Bar Association website. “They’re terminated and declared void before the jury returns a verdict or the judge renders his or her decision in a nonjury trial.”

There are several things that can trigger a mistrial, including “a fundamental error prejudicial (unfair) to the defendant that cannot be cured by appropriate instructions to the jury (such as the inclusion of highly improper remarks in the prosecutor's summation).”

When a mistrial is declared, the case can be retried. The process goes back to the beginning. If the judge denies a motion for a mistrial, the proceedings pick up where things left off. 

Jurors are set to resume deliberations at 9 a.m. Friday.

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