Judge denies mistrial motion
By Ethan Smith
Published in News on October 20, 2016 9:57 AM
Judge Arnold O. Jones II
WILMINGTON -- A motion by Arnold O. Jones II's defense attorneys to declare a mistrial in the case against the superior court judge on bribery charges was denied Wednesday as testimony entered its third day.
The motion came after the court's lunch recess, around 1:30 p.m.
An exchange between defense attorney Joseph Cheshire and the judge, James C. Fox, which happened prior to the recess, prompted the motion.
The exchange came when the defense and prosecution were called to sidebar after the government made its eighth sustained objection in under an hour. The objections came during Cheshire's cross-examination of Matthew Miller, who is the FBI task force officer to whom Jones allegedly offered the bribe.
Cheshire alleged in open court following the private conversation that Fox had said he did not trust Cheshire due to a case that happened 20 to 25 years ago.
During the sidebar Fox told Cheshire, "This court is not playing games."
Federal prosecutors have claimed Jones' attorneys violated several pretrial court orders and motions barring certain arguments and evidence from being presented during the trial.
The motion to declare a mistrial, presented to the court by another of Jones' attorneys, Glenn Barfield argued that by Fox allegedly saying he lost trust in Cheshire two decades ago, Jones' right to a fair trial had been put at risk and the trial should be scrapped and a new one started.
Prosecutor William Gilmore argued that what Fox may or may not have said to Cheshire had no bearing on the jury's perception of Jones' innocence, and the trial should continue after Fox reminded the jury to not allow anything they heard between the attorneys and the judge to influence their judgment of Jones.
"The counsel for the defense has engineered the situation we are in," Gilmore said, referencing the government's belief that Jones' attorneys defied court orders and caused the barrage of objections from the government during the cross-examination of Miller.
With the motion denied, the trial continued.
Miller's testimony lasted two days, during which the prosecution showed a video that showed an Oct. 27, 2015 meeting between Jones and Miller in the parking lot of a McDonald's in Dudley. The were there to shore up the details over Miller obtaining the text messages Jones sought, the prosecution said.
In the video, Miller also allegedly showed Jones a roster of phone numbers on a sheet of paper with Rui Dos Santos' phone number highlighted on it to confirm that was the number -- other than his wife's -- that Jones wanted text messages from.
Dos Santos is identified as a work client of Jones' wife, Ingrid Lancaster Jones.
During that video, the men appeared to agree on two cases of beer, though Miller mentioned both options of two cases of beer or $100. The agreement was made when the men settled on the two cases of beer.
During the time between that meeting and another in-person meeting where the exchange of texts allegedly occurred, the two men reportedly reverted to the $100 as a form of payment.
That exchange was also caught on video and played before the court.
Miller testified that the two men met at the bottom of the staircase on the ground floor of the Wayne County Courthouse, and he gave Jones a disk containing texts Jones sought and Jones gave him a folded up $100 bill.
During Cheshire's cross-examination of Miller, he did not spend much time attacking the evidence. He instead honed in on Miller's testimony itself.
Cheshire dialed in on Miller's investigative process, as well as why Miller did not explicitly tell Jones about the process needed to obtain the text messages he sought between his wife and Dos Santos.
The government objected a total of 12 times during the cross.
Cheshire questioned Miller on why he did not specifically tell Jones he would need to go in front of a federal magistrate in Greenville, lie to get the search warrant that would allow him to obtain the text messages and confirm this was exactly what Jones wanted him to do to get the text messages.
Miller referenced a text he sent using language that included phrases such as "probable cause" and "factual bases," that he believed would have clued Jones in on the necessary steps to get the warrant since Jones is a superior court judge.
"In any realistic situation I wouldn't have that conversation," Miller said, telling the jury that officers do not spell out the process of investigation to the people they are investigating, because if they did, they "wouldn't have very many cases," Miller said.
Victor Gibson Grose, a forensics examiner for the FBI, then testified about the process of getting emails from Apple, and that the FBI had a disk that contained emails from the iCloud account of Jones.
Jones' attorneys posed no questions.
The government then called Dos Santos to the stand.
Dos Santos was shown an email purportedly from Jones' iCloud email account, which contained his name as the subject line of the email and his home address in North Dartmouth, Mass., as the entire body of the email.
Dos Santos testified that he did not know how his home address had wound up in that email.
The government then asked how Dos Santos would have felt if his text messages would have been surreptitiously accessed and shared with Jones.
"I believe I am entitled to my privacy as an American citizen," Dos Santos said, adding he would have been "furious" if his messages were actually accessed secretively.
Again Jones' attorneys posed no questions.
The last government witness Wednesday was FBI Special Agent Ted Lea, who testified about the FBI's function in investigations as well as Miller's power to investigate crimes.
Lea said Miller brought him the text messages between himself and Jones after Miller was told by his superiors to simply tell Jones no to his request and had no faith the Wayne County Sheriff's Office would investigate the alleged crime.
Lea testified that Miller had nothing to gain personally by bringing this to him at the FBI office in Greenville, as Miller is over the age of 37 and too old to be made an FBI special agent. Lea also said he had nothing to gain, as no pay raise or promotion was promised to him for investigating this case.
A judge is also supposed to act as a gatekeeper between the general citizenry and law enforcement so law enforcement cannot abuse its power and execute search warrants on just anything, Lea testified.
Lea's testimony ended before it was complete, as court recessed for the day just after 4:25 p.m.
Both the prosecution and defense are expected to rest this morning, and then deliver closing arguments.