RACINE — Minutes before a jury was likely to begin deliberations, a homicide trial in Racine County Circuit Court ended abruptly Friday afternoon when a mistrial was declared, after the court ruled that statements made by defense counsel in closing statements violated the rules.
Judge Maureen Martinez declared the mistrial. A new trial is scheduled for Oct. 17.
Donley M. Carey, 36, is charged with intentional first-degree homicide in the Feb. 25, 2020, shooting death of DeMarcus Anderson, 28, at the Sin City Biker Club at the southeast corner of Ninth Street and South Memorial Drive.
Mindy Nolan represented the defendant in court. In her closing statements to the jury, she made references to witnesses and asked where they were, although those witnesses had invoked their Fifth Amendment rights against self-incrimination. She also asked the jury to imagine how they might feel years after the verdict.
Leading the prosecution was Assistant District Attorney Antoinette Rich, who objected to the statements made by Nolan.
The jury was excused while Martinez considered the matter.
Still outside the presence of the jury, Martinez told defense counsel her comments were “way over the top.”
Martinez said: “It’s unacceptable to refer to people who have taken the Fifth.”
There were other comments the judge felt were unacceptable. For example, Nolan asked, “Where is the gun? What was in the garbage bag?”
By asking those questions, she was basically asking the jury to speculate, Martinez said.
The “Golden Rule,” Martinez continued, is to avoid asking people how they are going to feel in the future about their verdict.
“All of these bells have been rung, and there’s not a way around them,” she said.
Rich would have preferred not to have a mistrial and be put into a position of having to try the case a second time. She requested additional instructions for the jury, but Martinez said no.
“I’m very sorry,” she said to Rich. “I know you’ve worked hard, but I don’t have a choice.”
The mistrial came after a long, emotional day in which the defendant made the rare decision to take the stand, then denied being the shooter that took Anderson’s life.
It was the fifth day of the trial and fourth day of testimony; all that happened Monday was jury selection.
Carey told the jury he was held at gunpoint by Anderson and a second man over allegations he was “the police” — in other words, a snitch — and made to undress because they were looking for a wire.
It was the intervention of a friend that saved his life, Carey said.
“I am grateful, honestly,” he added.
It was not direct evidence that led to the arrest of Carey; rather, a man who claimed to have been in the bathroom when the murder occurred named Carey as the person who did the shooting. That man, whose name is withheld to protect his identity, was reportedly a friend of Anderson’s.
The two went into a tiny bathroom in the club and took their clothes off, the witness said, to show the other person they were not wearing a wire.
The witness claimed that Carey then dressed, left the bathroom, and came back with a handgun he used to shoot Anderson seven times.
However, the witness’ testimony was problematic. By his own admission, he had been awake for three or four days and taking ecstasy.
A second witness said he saw a very angry Carey come out of the bathroom, get a gun from a man in the club, and return to the bathroom just as the shooting started.
However, a witness for the defense who saw the friend of Anderson’s immediately after the killing told the jury said that the friend had said, “they shot him,” indicating more than one shooter.
Carey took the stand and refuted the previous testimony, telling the jury the testimony of the primary witness was a lie.
The defendant referred to Anderson as “my people” and said the two called each other cousin.
He said in the early-morning hours he was cornered in the club by a group of people with guns who told him “we know what you’ve been doing” and “we kill rats here.”
Carey alleged he was taken to the bathroom and held at gunpoint by Anderson and a second man, and made to undress. The two were looking for a surveillance wire of the kind investigators use.
When asked if he was scared, Carey replied: “Yeah.”
He testified that he tried to reason with the second man, who was a friend, reminding him that Carey had four kids, one of whom has a chronic illness. Carey told them he was no snitch.
The two men went through his clothes and took his money and cellphone, he said. When his pants did not come down immediately, he said he was hit in the head with a pistol.
Carey claimed when Anderson saw a string hanging down from the waist of his pants, he said: “The wire is right here. Shoot. Shoot.”
Carey claimed he showed them it was a string and said, “I don’t have no wire on me.”
Anderson allegedly turned to the second man and said, “Do it.”
“I was like, you see I ain’t got no wire on. What you mean do it?” Carey said.
Allegedly, Anderson told the second man, “He might go to the police. Do it.”
Carey responded, “No, no, no.”
He begged the man to think of his kids, especially the sick one.
The man told Anderson, “He doesn’t have a wire,” according to Carey.
Anderson allegedly told the second man, “You’re a (expletive). If you’re not going to do it, I’ll do it.”
Carey said “no, no, no” and tried to squeeze behind the little sink in the bathroom.
However, he claimed Anderson looked like he was pulling the trigger but nothing happened.
The defendant said he began screaming for help. The door partially opened. It was blocked by Carey’s clothes, which had been left in a pile on the floor.
Through the partially open door Carey said he could see the face of a friend, who forced the door open, and charged at Anderson.
Carey kicked his clothes into the hallway; as he was dressing, he said, he heard multiple gunshots.
He ran from the club and jumped into the car with the person he credits with saving his life.
Carey said all he could think of was his kids.
The defendant said he was informed almost immediately that he was being blamed for the homicide.
So, he fled to Michigan, where he ended up being taken into custody.
Within two weeks of the killing, a warrant had been issued for his arrest and Carey was brought into custody.
When asked why he did not call the police and tell them what happened, he said the club had cameras and he anticipated investigators would soon know the truth.
However, the cameras had been ripped out after the homicide. Carey also said he did not think the police would believe him.
In photos and video: The 36th Annual Original Bike Blessing in Oak Creek
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