Mistrial denied in Haffa case

MAYVILLE — A mistrial request was denied in the Justin Haffa attempted murder case Monday, even though it was learned the district attorney knowingly possessed information that he didn’t acknowledge to the defense in relation to a medical visit by Sheriff’s Deputy Sara Cunningham.

Public Defender Ned Barone last week explained situations and instances in which he says cumulatively defeated his client’s rights to a fair trial. One of them outlined was information he never received before jury selection from the District Attorney’s Office regarding a doctor’s visit that Cunningham made after the Sept. 11, 2016, incident with Haffa on Route 60 in the town of Pomfret.

The follow-up doctor’s visit was heard in court during Barone’s cross-examination of Cunningham on Jan. 26. It was the first time Barone was aware of the visit as it wasn’t discussed in court during the first trial in September 2017. Swanson claimed he wasn’t aware of the visit when it resonated in Chautauqua County Court.

After statements by Prosecutor Christopher Belling last Tuesday that the prosecution wasn’t aware, it was learned Friday that Swanson indeed had knowledge of the visit after speaking with Cunningham sometime between the first trial and the commencement of the second trial last month. Belling stated Friday that Swanson met with Cunningham on Monday, Jan. 29. It was then when Belling said Swanson’s mind was refreshed. Belling said at the time he wasn’t aware of the meeting, and thus his statements last Tuesday were erroneous.

In his decision to deny the mistrial request, Chautauqua County Court Judge David Foley acknowledged the jury isn’t privy to most of the information discussed. In addition, he said the visit and the medical report doesn’t pertain to any material issue in the case.

“I don’t see how the failure has any impact on proceedings with this trial,” Foley said. “This jury can make a fair and impartial determination on this (case).”

Foley, however, expressed grave concern with the way the District Attorney’s Office is representing itself, and it goes back to last fall when the office failed to hand over a DNA report to the defense before resting its case. Foley also referenced a recent complaint by the defense that the prosecution escorted Haffa’s girlfriend after testifying out of the courtroom and to the District Attorney’s Office to avoid being subpoenaed by defense attorneys. Foley called it “completely improper.”

In relation to Cunningham’s follow-up visit, Foley said he finds it very difficult to think Swanson had his memory refreshed by her during their meeting Monday, Jan. 29.

“That indicates why not then immediately contact Mr. Barone to resolve that issue, and/or indicate to Belling prior to making argument Tuesday, Jan. 30?” Foley said. “I’m not sure why Mr. Swanson can sit there and allow Mr. Belling to make this argument before the court while he (Swanson) possessed knowledge without notifying the court that he indeed had his memory refreshed.”

The defense on Jan. 30 alleged a Brady violation since the prosecution withheld information pertaining to the visit from them. Foley denied the defense’s charge for a dismissal motion and mistrial motion since the information contained no information that could have benefited the defense.

Overall, Foley said he’s concerned with the District Attorney Office’s actions not only in this trial, but also future trials that the court may have to sit in on.

Jurors were off Monday. They’ll return today as summations will commence.