BELLEVILLE – A blood spatter analysis in the murder of Carl Silas wasn't ordered until three weeks after the first trial of David Fields ended in mistrial in July, and it wasn't provided to defense attorneys until the day before Thanksgiving - on the eve of a second trial.
Special prosecutor Charles Colburn took advantage of the mistrial to obtain the analysis from technician Virgil Perkins who told jurors on July 24 that he didn’t need such a test.
Defense counsel Brittany Kimble on Nov. 27 moved to exclude a report of the analysis from a second trial set to begin on Monday in St. Clair County Circuit Court.
Alternatively, Kimble moved to continue trial so an expert could study the late report.
Her colleague Ryan Neal separately renewed a motion to dismiss the case, claiming Colburn goaded them into moving for the July mistrial.
Where a prosecutor deliberately causes a mistrial, constitutional protection from double jeopardy prevents a second trial.
Silas was killed in the early morning hours of Dec. 30, 2016 at his West Boulevard apartment.
After being identified as the shooter by witnesses, Fields turned himself in at St. Clair County jail later that day and has been jailed since.
The murder mattered more than others.
The regional Major Case Squad assembled a team of investigators, and special prosecutor Matt Goetten took charge. Later, Colburn replaced Goetten.
Both work for the Illinois State’s Attorney’s Appellate Prosecutor.
This year, as trial approached, Kimble and Neal prepared a package of motions to shape evidence and testimony in favor of Fields.
One motion proposed to tell jurors that Jamie Lott, mother of Silas’s children, had a motive to kill him.
Another motion proposed to exclude a witness who would have testified that Fields had a gun the day before the murder.
Another motion proposed to bar other witnesses from testifying that Fields talked about a gun or possessed one the day before the murder.
Colburn conceded the whole package.
Circuit Judge Robert Haida granted the motions, finding conversation about the gun irrelevant because it wasn’t the murder weapon.
Through three days of trial starting July 23, Colburn offered jurors little beyond grisly photographs and testimony of persons in the apartment.
His fingerprint expert testified she found no prints.
His firearm expert identified a weapon Silas kept by his bed, but no one brought forth the murder weapon.
Kimble asked state police crime scene technician Perkins if he performed a blood splatter analysis, and he said no.
She asked about other possible tests or reports, and he said no to each.
She asked why not, and he said what happened was "obvious."
Lott’s mother Latrisha Traylor testified as first witness from the apartment.
She said Fields was family and she recognized his walk.
Kimble asked if she knew Fields’s birthday, and she said she didn’t.
Kimble asked how he walked, and she said like the "young dudes."
Kimble asked if lights were on, and she said no.
The next witness from the apartment, Michael Taylor, testified on the fourth day.
He testified about a gun the day before, and Kimble moved for mistrial.
Haida granted it, and Fields returned to county jail.
Kimble and Neal moved to dismiss the case, claiming Colburn caused a mistrial in order to avoid acquittal.
Haida denied the motion.
On Nov. 16, Kimble and Neal proposed a plan to prevent another mistrial.
They moved to bar testimony about conversation between Fields and Silas the day before, whether it concerned a gun or not.
They wrote that the mistrial showed that witnesses couldn’t separate part of a conversation from the rest.
On the day before Thanksgiving, at 2:45 p.m., they received a splatter report.
On Nov. 27, Kimble moved to bar testimony about the splatter analysis and Neal moved to reconsider double jeopardy.
Kimble wrote that on Sept. 14, the court asked if discovery was complete and the state indicated it was, as it had repeatedly stated at status conferences leading up to the first trial.
She wrote that on Nov. 2, the state again represented that the defense had everything and they would be ready to start trial Dec. 3.
The splatter report was written on Aug. 15, and indicated that it was prepared at Colburn’s request.
Kimble wrote that Colburn indicated by email that he would introduce it in rebuttal.
She wrote that blood splatter is not a rebuttal issue and defense counsel believed he couched it as such so it wouldn’t be a discovery violation.”
“Discovery has been an issue in this entire case," Kimble wrote.
“Although the defense is arguing bad faith on behalf of the state, this honorable court can exclude the evidence even if it does not find bad faith.”
She wrote that if the court wouldn’t bar it, the defense would request a continuance giving time for an expert to review it.
She wrote that Colburn indicated one of four people might testify about it, though only one person authored it.
“How anyone else can testify about it, I’m not sure, but we are less than seven days from trial and this issue is still not resolved," she wrote.
Neal, pleading double jeopardy, wrote that Taylor began his testimony by not being able to identify Fields.
He wrote that the state eventually led Taylor into identification, and after lengthy sidebar, the state sought to elicit barred testimony.
He wrote that after brief side bar the state launched back into the same question, and Taylor, without hesitation, stated that Fields asked Silas for a gun.
“It is apparent that the state asked his witness this line of questioning on purpose because he supported his position when the defense asked for a mistrial," he wrote.
He wrote that the state indicated Taylor did nothing wrong because the motion didn’t cover him. And when the court indicated the motion covered the testimony, the state changed its argument to indicate he didn’t know what Taylor would say.
"It is further clear that the state intentionally goaded the defense into a mistrial because the investigation of the state’s investigator and his testimony were grossly subpar," he wrote.
He wrote that Perkins admitted there were many techniques and tests that could have been helpful but he didn’t do them. Four months later, the state delivered a report to the defense.
Neal wrote that it could only be assumed that Colburn goaded the defense into a mistrial such that he had time to refute the defense’s experts.
“Further, when opening statements began on July 24, defense counsel made clear its theory for trial, a theory for which the state was not prepared," he wrote.
He wrote that it was impossible to rectify the damage Colburn caused.