The judge who presided over Wayne Bush’s murder trial abruptly declared a mistrial on Wednesday after a woman gave potentially inflammatory testimony on the witness stand, marking Mercer County’s second murder trial of 2017 to end without a verdict.
“Very reluctantly,” Superior Court Judge Robert Billmeier said to the 14 jurors, “I discharge you with the sincerest thanks of all of us — the prosecutor’s office, the defendant and me — for all the sacrifices you’ve made. … Thank you, and you are free to go.”
The trial began March 15 and ended exactly two weeks later without the jurors ever getting an opportunity to deliberate.
Prior to calling the jurors into his courtroom and dismissing them for good, Billmeier gave comments from the bench explaining why he was “very reluctantly” declaring a mistrial.
He said Denise Louis, the state’s final witness who testified on Tuesday, did not follow his guidance or the guidance of prosecutors who had clearly warned her about the court’s rules of engagement. Louis was specifically told and reminded of the fact that she was not allowed to tell the jury about a conversation she had heard between Bush and a third party involving the statement, “Somebody is going to catch this.”
But Louis did not play by the rules and “gave the very language that she had been told by the prosecutor not to tell the jury,” Billmeier said. “It was immediate cause for a mistrial.”
Bush, 39, has been incarcerated at the Mercer County Correction Center ever since he surrendered to the authorities on Aug. 30, 2013. He has been charged with murder, possession of a weapon for an unlawful purpose and unlawful possession of a weapon on allegations he armed himself with a handgun and shot and killed Trenton hip-hop lyricist Jafar “Young Farr” Lewis, 26, on Aug. 23, 2013.
John Furlong, Bush’s defense attorney, called for a mistrial following Tuesday’s testimony debacle, and Mercer County Assistant Prosecutor William Fisher consented to Furlong’s request. The fact that both sides supported a motion for retrial made it compelling for Billmeier to grant the request on Wednesday.
Another reason Billmeier cited for declaring a mistrial is the fact that the New Jersey Superior Court Appellate Division in a March 13 decision affirmed his prior decision to exclude Denise Louis from telling the jurors about the “Somebody is going to catch this” conversation.
The Appellate Division found the statement in question to be “ambiguous” and noted that Louis had “stated she did not understand what was meant by the comment.” The Appellate Division further suggested that the comment “is more prejudicial than probative because of its potential inflammatory nature.”
Due to Wednesday’s sudden mistrial, a future jury of newly selected jurors will have to decide Bush’s fate.
“Obviously this jury never will have the opportunity to deliberate and obviously never make a decision as to guilt or innocence of the defendant Wayne Bush,” Billmeier said. “Mr. Bush has been incarcerated for more than three and a half years, and he’s entitled to have a second trial start promptly.”
Billmeier has proposed for Bush’s retrial to start on Tuesday, May 30, the day after Memorial Day.
In the meantime, Bush is being held on $100,000 cash only bail, but his defense attorney has asked the court to consider a bail reduction or conditional release from jail pending final resolution of Bush’s pending murder retrial.
Billmeier scheduled an April 11 status conference to discuss how the state intends to proceed and determine whether a bail reduction or a non-monetary conditional release is warranted.
“I give tremendous credit to Judge Billmeier,” Furlong told The Trentonian on Wednesday, “because he had to preside over some very rough water. The state’s case was idiosyncratic, and I am being charitable. It is, I don’t want to say outrageous but very concerning that Wayne Bush is still detained. He is entitled to bail after this episode of trials that found ways to go wrong. As far as I’m concerned, the murder of Jafar Lewis remains unsolved and Wayne Bush and I can’t solve it for them.”
Furlong said he is “exasperated” that the state’s final witness “blew up” the initial trial but looks forward to his client being found not guilty at the forthcoming retrial.
“I will be there when the bell rings for round 2,” he said. “If round 2 is like round 1, the state may want to rethink its prosecution. … No two trials are alike, but I am confident the state’s trial isn’t going to get better. If anything, it is going to get worse.”
Earlier this year, a hung jury’s failure to reach a verdict in the Isiah Greene murder retrial prompted Superior Court Judge Anthony Massi to declare a mistrial in that case on Jan. 31.
Another Mercer County murder trial defendant, Zaire Jackson, was found not guilty by a jury of his peers on Feb. 17, underscoring the difficulty Mercer County prosecutors have had in winning murder trial convictions this year.