The judge presiding over Thor Frey's retrial on a murder charge decided that a mistake made Wednesday by the prosecution was not serious enough to warrant a retrial, and told attorneys they can begin presenting their summations Thursday morning.
Frey's attorney, Michael Priarone, asked for the mistrial after prosecutor Kelly Shelton asked her last question of his second and final witness and Judge Ann R. Bartlett sent the jury home for the day.
Shelton was questioning Rachel Glester about her interview with police concerning a visit Frey made to her home on the evening of Aug. 17, 2006, less than 12 hours before 75-year-old Mary Bostian was found bound and suffocated in her Phillipsburg home on Aug. 18.
Shelton asked Glester if she had kept in touch with Frey since 2006, and when she hesitated, Shelton produced a fax of a letter sent by Frey to Glester in January 2012. Glester then said they had been in touch recently, adding that she and Frey were "reunited" because she has been in jail in the Warren County Correctional Center since January 2011.
Priarone said Glester's answer was "designed to elicit a response about my client's incarceration" and an attempt by the prosecution "to sandbag my case."
Authorities have gone to great lengths to prevent jurors from knowing that Frey has been in jail for years; that he was convicted in 2009 of murder, robbery, burglary and criminal mischief, and that he is being retried on those charges.
Priarone also said Shelton purposely did not alert him to the faxed letter, which she received from someone at the jail at 1:41 p.m., during Wednesday's lunch break.
After a 25-minute break, Bartlett ruled that there would be no mistrial, because while the prosecutor's failure to alert Priarone about the letter was "inappropriate," it was not a "fatal flaw" to the defense.
She also said she would advise the jury Thursday morning to not draw any conclusions about Frey being in jail.
Priarone presented Frey's defense in less than half an hour.
Glester said Frey and Donald O'Grady visited her home between 10 p.m.
and midnight on Aug. 17, 2006, and wanted her boyfriend to celebrate Frey's birthday by going out drinking with them. She said both Frey and O'Grady appeared to be drunk already.
She also said she did not see Frey wearing a medallion, only a ring. (Investigators found a medallion with a Thor's hammer design in Bostian's living room, and is considered a key piece of evidence against Frey.)
Under cross-examination, Glester admitted she did not look under Frey's shirt to see if he was wearing a medallion, and that she was doing time for robbery and eluding police.
The other defense witness was Sally Monaghan, who lived next door to Bostian on Thomas Street. She testified that she heard Bostian's back door slam at about 5:45 a.m. and saw a vehicle's red tail lights in an alley near the homes. Investigators believe that Frey and O'Grady murdered Bostian hours earlier while stealing a safe with $25,000 in cash and coins from a second-floor bedroom.
Frey declined to testify in his own defense. He answered "no" when Judge Bartlett asked him his intention just after noon Wednesday, a few minutes after the jury left the courtroom for a lunch break.
First, Bartlett explained to Frey that she could instruct the jury to presume him innocent should he decline to take the witness stand.
Priarone responded, "Your honor, we want that charge."
Priarone later asked that his client be acquitted on all four charges against him because the state had not substantiated the charges with the testimony from about two dozen witnesses that began last Thursday.
Shelton summarized the state's case, and Bartlett then ruled that enough evidence had been presented that the jury could find Frey guilty of all the charges beyond a reasonable doubt.
The prosecution presented its final two witnesses Wednesday morning.
Dr. Isidore Mihalakis, a forensic pathologist who examined Bostian's body at the scene on Aug. 18, 2006, and did an autopsy the next day, testified that Bostian was "beaten and suffocated."
He explained the injuries to Bostian's body using a series of photos that were shown to the jury on a widescreen TV and to Frey on a laptop.
Mihalakis said several of the bruises were on Bostian's scalp, and that they were probably caused "by something soft, [like a] fist."
He said he found eight bruises on the right side of her rib cage, and that five ribs were fractured.
He said the cords used to bind her wrists were not knotted, but the telephone cord used on her ankles was.
Elizabeth Cafarella testified that the mail-order company she works for, AzureGreen of Middlefield, Mass., sold two medallions with a Thor's hammer design in the Phillipsburg zip code between March 1, 2005 and Aug. 21, 2006.
Frey's ex-wife, Naomi, has testified that she bought two of the medallions from AzureGreen and gave one of them to Frey through his sister.
Under cross-examination, Cafarella said that AzureGreen sold 524 of the medallions between March 2005 and August 2006, and "about 40" of them were sold in Pennsylvania and New Jersey.
She also said other vendors were selling the medallions.
The start of the retrial was delayed Wednesday morning because a juror complained she was intimidated by talk coming from people at the retrial who were smoking outside the Warren County Courthouse.
Judge Bartlett spent about 90 minutes interviewing jury members individually to see if they heard anything prejudicial about the retrial, if they were intimidated by what they heard, or if their ability to be impartial has been compromised.
Before the jury was seated, she told people in the gallery that if they want to congregate or smoke, they should do so in front of the courthouse, not near the entrance-exit door.
She said jurors "feel like they're walking in on a conversation they are not supposed to hear."