A Philadelphia judge has declared a mistrial for three men charged in a fatal beating outside a Phillies game two years ago.
The mistrial Tuesday comes after a prosecution witness and friend of the victim identified 30-year-old defendant Frances Kirchner as the person who kicked 22-year-old David Sale Jr., of Lansdale, delivering the fatal blow.
Lawyer Brian McMonagle says defense lawyers were told the witness was not being called as an “identity witness.”
The prosecutor is obligated to tell the defense attorneys any incriminating evidence, including identification testimony, reports the Inquirer. Because the testimony by Sale's friend Ryan Tulino was a surprise, and the defense was not alerted and therefore not prepared, it was grounds for a mistrial.
Tulino's "blurt out" put Assitant District Attorney Richard Sax in a tight spot, as the defense is now claiming prosecutorial misconduct, reports the Inquirer.
The 30-year-old Kirchner is charged with first-degree murder and 37-year-old Charles Bowers and 48-year-old James Groves with third-degree murder in the drunken melee outside Citizens Bank Park in July 2009.
McMonagle plans to argue double jeopardy if a new trial date is set. A hearing is set for Wednesday.
The Philadelphia Inquirer first reported on the ruling.