Judge in driveway shooting trial: jury can’t consider criminally negligent homicide

Before closing arguments began in the driveway shooting trial on Tuesday, there was a heated exchange between one of the attorneys representing Kevin Monahan and the judge.  

Monahan is charged with second-degree murder.  

Judge Adam Michelini had denied the defense’s motion to let the jury receive an instruction on the lesser offense of criminally negligent homicide. That would carry a maximum penalty of 1 1/3 to 4 years in prison compared with up to 25 years to life for murder.  

Defense attorney Kurt Mausert made a motion for a mistrial on several grounds that his client has been denied a fair trial.  

Mausert said that during his client’s first appearance, Michelini said that this was a simple case. However, Mausert pointed out that the people have presented two dozen witnesses in the case.  

“I think we disagree on the term ‘simple,’” Michelini interjected.  

Mausert added: “It tells me that the judge has pre-judged,” he said.  

Michelini clarified his thoughts.  

“What it means is there’s not a lot of charges. It’s not a 20-count indictment,” he said.  

“Don’t try to put words in my mouth,” Michelini added. 

Mausert said there is no such thing as a homicide case.  

Then, he took issue with the timetable for the case.  

“Then, the court tried to make me go to trial in three months and two days,” Mausert said.  

Also, Mausert cited a point during the trial where the court’s attorney interrupted Michelini and asked if First Assistant District Attorney Christian Morris had any further re-direct questioning of a witness. 

“The remark from the court’s attorney sent a clear signal that the court wasn’t going to be a neutral arbiter,” he said.  

Mausert added that the court attorney took it upon herself to become an assistant prosecutor on that day.  

Mausert also took issue with the fact that judge admitted in a conference that he looked up the term “psychophysiology” using a Google search.  

At that point, Michelini asked that to put this in a written motion.  

“It’s too much to absorb in this type of format. We don’t have a lot of time,” Michelini said.  

“You had all weekend. I had five minutes because I didn’t get your decision until five minutes ago.” 

Michelini pointed out that they had a three-day weekend before court resumed to put this in writing.  

Michelini had Mausert continued that the expert was not allowed to testify how psychophysiology impacted Mr. Monahan’s state of mind.  

“You have a pretty odd way of interpreting things,” he said.  

Mausert responded: “On that, we have something in common.”  

Regarding looking up the term “psyhchophysiology,” Mausert cited other examples where judges have been admonished or censured for seeking testimony from extrajudicial sources.  

In addition, Mausert said there was one instance during the trial when Michelini raised objection on behalf of the people.  

Finally, he said that the defense’s theory is that Monahan stumbled and fell and had an accident. Criminally negligent homicide would mean negligence.  

“Of course, people don’t perceive the risks of accidents until the accidents happen,” he said.

He believes that the judge’s error could be grounds for a successful appeal.  

Michelini said he believes that the Monahan case is different than other cases. 

“Negligence regarding firearm deaths usually have to do with cleaning the gun, cocking the gun. I’ve never seen a case directly on point where negligent homicide is supported.”  

Michelini admitted that he looked up the term “psychophysiology” to be sure that it didn’t mean the same thing as “fight-or-flight response.”   

He also denied that his court attorney was helping the people.  

“She’s not acting as an assistant DA. She’s making sure things are getting dealt with appropriately. Everybody is getting their chance to be heard,” he said.   

Then, Michelini denied the motion for a mistrial and closing arguments began.