Melissa Walsh

Judge declares mistrial in Day case

Grosse Pointe News | March 22nd, 2018 | Judge declares mistrial in Day case

Day mistrial

Judge declares mistrial in Day case

By Melissa Walsh | on March 21, 2018

Detroit — With eight witnesses sequestered outside the courtroom on the third day of trial charging Gerald Day Jr. of first-degree home invasion and armed criminal sexual assault in Grosse Pointe Woods, Wayne County Circuit Judge Kevin J. Cox declared a mistrial Wednesday, March 14.

Monday, March 12, Cox gave the newly selected jurors their instructions for evaluating elements in the seven criminal counts accusing Day, 28, of breaking into a mother of four’s home and raping her at gunpoint in the 19000 block of Raymond April 15, 2017, including, “If the defendant does not testify that does not change the People’s burden to prove all elements beyond reasonable doubt.” He instructed Day is presumed innocent until proven guilty.

“Only the answers by a witness are evidence,” Cox added. “The questions the attorneys ask are not evidence.”

Proceedings were expected to continue six days with the jury deliberating no earlier than Tuesday, March 20.

The first day of trial concluded with the assistant prosecutors and defense attorney giving opening statements to the jury.

The prosecution told jurors they would be presented evidence of an eight-day crime wave in three Grosse Pointe communities, where Day “left his calling card.”

Christine Grand, defending Day, told the jury, “We are here because the prosecution has made a lot of serious allegations. You are here because we believe you are a fair and impartial jury.”

The rape victim would be the first of 27 witnesses summoned by the prosecution to give testimony. But when the court gathered 9 a.m. Tuesday, March 13, Cox released the jury, announcing the defendant was not in attendance and the trial would resume 9 a.m. Wednesday, March 14.

Wednesday morning, Day again was absent from court and, for the first time during her son’s scheduled court appearances, Day’s mother also was absent.

The court record began that morning with Wayne County Assistant Prosecutor Danielle Bennetts stating Day’s absence due to hospitalization was allegedly the result of his own actions. She requested a continuance.

Grand objected, arguing the cause of her client’s hospitalization remained unconfirmed. He was found unconscious in his jail cell overnight, she said, adding statements made to a Detroit Free Press reporter by Grosse Pointe Farms Lt. Detective Rich Rosati on Tuesday should lead to a mistrial.

“Unfortunately the court is in the position of declaring a mistrial,” Cox responded. “That Day is in the hospital due to his own action is the best information I have. … I can’t assume (the jury) will be able to be here beyond next Tuesday.”

Calling Rosati’s statements to the Free Press, published that morning, “beyond the pale” and “very troubling,” Cox said, “It’s beyond ridiculous and regrettable that Mr. Rosati told a reporter about other alleged incidents that are not before the jury. I wonder, was Detective Rosati trying to invoke a mistrial?”

Grand said, “If I have any other information, if (Day) is returned to jail, I will tell the court and the four prosecutors.”

According to Wayne County Jail inmate data, Day was in jail Monday, March 19, the day he was scheduled to appear in Cox’s court for the start of the jury trial for charges of home invasion and felonious assault occurring in Detroit Dec. 20, 2016.

In the Woods case, Wayne County Assistant Prosecutor and Director of Communications Maria Miller released a statement the afternoon of Wednesday, March 14, explaining, “Today Judge Kevin Cox declared a mistrial because the defendant is medically unavailable.”

Miller announced July 10, as the date for jury trials for both the Woods and Detroit cases, beginning concurrently in Cox’s courtroom.

At press time, the prosecutor’s office had no comment on the reason for Day’s hospitalization.

Grosse Pointe Farms Director of Public Safety Dan Jensen told the Grosse Pointe News he feels there is no damage to the case with Rosati’s statements to the Free Press — “that if Rosati hadn’t said anything, it would’ve been the same outcome.”

The Woods charges are for one of six active criminal cases appearing on Cox’s docket in which Day is the defendant. Feb. 5, 2018, Day waived a plea resolution offered by the prosecution to serve 27 to 50 years in prison, pleading not guilty to 18 felony counts that, if found guilty, could lead to a sentence of 177 to 257 years. In proving the elements of the seven counts in the Woods case, Cox granted the prosecution’s request to allow “other acts evidence” from other cases linking Day.