MARIETTA, Ga. – A defense attorney moved for a mistrial and an angry judge demanded an apology Thursday after the brother of a dead 8 year-old-boy referred on the witness stand to another sibling who had died.
In the end, Cobb County Superior Court Judge James Bodiford did not declare a mistrial in the case of Joseph and Sonya Smith, who are accused of murder in the death of their son Josef.
But he extracted and accepted an apology from defense attorney Manubir Singh Arora for asserting that the second child’s death had been discussed with Bodiford prior to trial, even though Bodiford recollected no such thing.
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The Smiths are charged in a 14-count indictment with murder, cruelty to children, aggravated assault and false imprisonment in Josef Smith’s 2003 death.
Prosecutors allege Josef Smith was beaten by his parents, locked inside a wooden box and forced to stay in a closet for hours at a time before he died.
The defense has maintained that Josef did not die from the injuries, and that the county medical examiner failed to perform crucial tests that would have found the actual cause of his death.
Josef’s older brother Mykel Booth testified Thursday that Josef died after he was shut up in a wooden box.
When the boy died, Mykel Booth said his father “started crying too and it was like they started praying, hoping they didn’t lose another son.” In a conversation later with the judge, lawyers confirmed that the comment referred to another child who had died of an unspecified medical condition.
After Mykel Booth made the reference, Arora moved for a mistrial and told Bodiford, “this had all been discussed before the trial.”
Judge Bodiford exploded.
“I’m going to give you to 1 o’clock to show me on the record where we talked about it,” he said. “You have just impugned the court’s integrity. You’ve just made a huge mistake with this court. Now bring in the jury, sit down.”
After a lunch break, Bodiford said, “I think ‘hoping they didn’t lose another son’ is subject to several interpretations and I am not going to declare a mistrial.”
He told jurors to ignore that portion of Mykel Booth’s testimony. None of the jurors said they had would have a problem doing so.
Arora apologized and Bodiford accepted it.
Mykel Booth acknowledged under cross examination that when ordered to go inside a closet, his younger brother was able to get out of the closet if he wanted to.
Prosecutors brought into court a large wicker and wood box that Mykel said Josef would climb inside when told to by his mother.
Previously, police officials testified that the boy’s father told them that Josef frequently needed discipline because he carved death threats on the walls that kept the family awake at night and claimed he was a foot-soldier for the devil.
But prosecutors say the parents, Joseph and Sonya Smith, met that behavior with a tragic overreaction that led to the boy’s death – his body full of bruises and other injuries – after an October 2003 prayer session.
On Wednesday, the prosecution showed jurors emergency room photographs of what appeared to be bruises on the boys head, shoulders, torso and legs. The father acknowledged hitting him with a glue stick.
The father also told detectives they stayed up at night after their son carved death threats against the family on walls of the house and that he claimed he was “Legion, soldier of the devil,” Gaynor said.
The boys parents told authorities he passed out and never regained consciousness after the family gathered in the kitchen to participate in a prayer session with their church via the Internet.
The Smiths are members of the Franklin, Tenn.-based Remnant Fellowship Church, which grew out of church leader Gwen Shamblin’s Weigh Down Workshop, a Christian diet program she created in 1986. Authorities raided the church in June 2004 as part of the investigation of Josef Smith’s death.
Officers testified that they had not established a solid link between the church and the boy’s death.
The trial is expected to last through next week.