SalemNews.com, Salem, MA

December 7, 2013

Judge won't dismiss OUI charge after mistrial

Julie Manganis
The Salem News

— PEABODY — A Salem Superior Court judge will not dismiss the case against a serial drunken driver whose trial on his alleged fifth offense ended in a mistrial last month.

But Judge David Lowy was critical of the two Peabody police officers whose testimony about Peter Hurley’s past triggered the mistrial, calling their conduct “inexcusable and serious.”

Hurley, 52, was charged back in 2011 with drunken driving, resisting arrest, threats and driving after license suspension after a Peabody patrolman, Richard Rose, saw him pull out of a parking lot on Walnut Street by driving over a curb, then saw Hurley run two red lights in downtown Peabody, he testified last month during Hurley’s aborted trial.

Two other officers, Patrolman David McGovern and Lt. Arthur Yeo, were called to testify about the process of putting Hurley into custody and booking him.

Before the trial, in keeping with longstanding rules of evidence, Lowy barred testimony about Hurley’s past arrests on the grounds that it could bias the jury’s decision.

But during his testimony, McGovern made reference to being familiar with Hurley. Lowy warned jurors to disregard that statement.

Then Yeo took the stand, and in response to a question about the time of the booking, told jurors that police already had information about Hurley in their computers from prior incidents.

That triggered the mistrial.

Hurley’s attorney, Kirk Bransfield, moved for a dismissal of the case on double jeopardy grounds, arguing that police had essentially forced a mistrial through a long pattern of misconduct starting on the night of Hurley’s arrest and that Hurley had been “prejudiced” by the actions of police.

Prosecutor Ashlee Logan suggested that there was no intent by the officers to force a mistrial, however, and no lasting prejudice since Hurley would have a different jury for any re-trial.

Lowy agreed, finding that while police misconduct is one basis for a dismissal after a mistrial, that alone is not a sufficient basis to dismiss a case.

“While the conduct of the police witnesses in the case was inexcusable and serious, any prejudice to the defendant has been diffused with the granting of a mistrial,” the judge wrote in his one-page ruling issued yesterday.

“Further, there would have been no reason for the police officers to have sought a mistrial,” the judge also found. He said that even if the officers understood the implications of their improper testimony, they had no reason to goad Hurley and his lawyer from seeking a mistrial.

A status hearing in the case is scheduled for Monday, during which Hurley may ask to be released on bail.

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.