Another mistrial request denied
Shelton defense says prosecutors hid facts
He listed his “danger areas” as McKeesport, Homewood and Wilkinsburg.
Given his preference, he wanted to be hidden beyond “east Allegheny County.”
And if he could go out of state, he wrote that he would choose South Carolina.
Instead, on Oct. 25, 2016, six months after starting to cooperate with police investigating the mass shooting in Wilkinsburg, he went to the Extended Stay in West Mifflin under the alias of an Allegheny County police homicide detective.
Those details about Kendall Mikell, a man referred to as “Witness No. 1” in the criminal complaint that led to arrests in the 2016 Wilkinsburg mass slaying, are contained in a “witness profile form” from the Pennsylvania attorney general’s office’s Witness Relocation Program.
The form was part of a court filing Thursday by the lawyer for Cheron Shelton, who is on trial for multiple counts of homicide in the March 9, 2016, massacre at a backyard barbecue that left five adults and an unborn child dead. The jury was sent home at 4 p.m. Thursday. It will reconvene Friday for a fourth day of deliberations.
In the filing, attorney Randall McKinney asked again for Allegheny County Common Pleas Judge Edward J. Borkowski to declare a mistrial in Shelton’s case, renewing claims that prosecutors wrongly hid crucial details from the defense about payments to Mikell, lied about their dealings with him and told him to make up information.
Previously, the judge had denied a similar request, and he did so again Thursday afternoon.
The Allegheny County district attorney’s office has rejected Mr. McKinney’s allegations.
If no mistrial is declared, Mr. McKinney again asked the judge to take the death penalty off the table if his client is convicted of first-degree murder.
Mikell, 32, a jailhouse informant who told police he spoke with Shelton and his former codefendant, Robert Thomas, while behind bars, claims that he was paid thousands of dollars for his information. But, Mr. McKinney argues, those details were not turned over to the defense prior to trial.
Under something called the Brady Rule, prosecutors are required to disclose exculpatory evidence to the defense.
The DA’s office claims the witness was never used during the preliminary hearing for Shelton and was not called as a witness during trial.
“The self-righteous denial by the commonwealth does not justify or excuse withholding the information they today admit, now they have been exposed, combined with other key facts including this witness is a career paid informant,” Mr. McKinney wrote.
While the witness form was
turned over in December 2017, Mr. McKinney wrote that he was not told by prosecutors until this week that Mikell got thousands of dollars and leniency in pending criminal cases despite numerous requests for such information.
On the witness profile sheet, signed by Assistant District Attorney Lisa Pellegrini, one of the prosecutors in the Shelton trial, a box is marked “No” that asks whether Mikell has pending court proceedings.
But, Mr. McKinney wrote, Mikell was wearing a “prison uniform” during his interview with prosecutors on the Wilkinsburg case, so they “had to know” that he had pending cases.
Another box asks whether the witness is cooperating in a criminal case and receiving benefits. That also is marked “No.”
Mr. McKinney alleges that law enforcement paid Mikell cash “off the books.” Mikell told the lawyer in a phone interview, transcribed and filed with the court, that he was wired $2,700 at a Walmart in West Virginia.
“I was given money for groceries. I was given coffee money, a hundred dollars here and there if I needed something from detectives,” Mikell said. “Sometimes I signed for it.”
Mr. McKinney’s underlying argument is that Mikell’s information was key to arresting Shelton in the first place, and had he known about law enforcement’s arrangements with Mikell at the time, he would have “used this vital information” to challenge the arrest.
He wrote that “it doesn’t matter if commonwealth ultimately used Witness 1 at trial; their arrest and subsequent investigation relied on Mr. Mikell’s actions and statements. The commonwealth is not absolved of their obligation under Brady or of misconduct because they chose to remove this witness from the landscape and cannot fix it by admitting to said payments during jury deliberations.”
Mr. McKinney and Mikell claim investigators put Mikell in a cell next to Shelton’s so he could mine the suspect for potentially incriminating information. Instead, he said, Shelton said he was innocent, but Mr. McKinney claims that statement was never turned over to him.
On a “referring agency form,” Ms. Pellegrini and Allegheny County police thenLt. Andrew Schurman signed off on the statement: “Witness Kendall Mikell had direct contact with defendants who were incarcerated in the above referenced homicide. Defendants talked about their involvement in this case. Witness’s statements have been turned over in discovery and his cooperation is known to the defendants.”