KANSAS CITY — "I knew him prior."
Those four words uttered recently by a police detective in front of a jury prompted a Jackson County judge Wednesday to dismiss the murder case against a Kansas City man.
The dismissal “with prejudice” means that prosecutors cannot re-try Markus D. Lee for the 2007 drive-by killing of Eliseo Thomas. Assistant Public Defender Molly Hastings requested, and the judge ordered, that Lee be released Wednesday.
It was the third time this decade that Lee, 25, was charged with committing a murder and the third time he has avoided conviction.
Jackson County Prosecutor Jim Kanatzar could not be reached Wednesday about whether he will seek an appeal.
Kansas City police officials said they wanted to see the judge’s written order before commenting. The judge said he planned to have the written order available Monday.
In Wednesday’s oral ruling, Circuit Judge Robert M. Schieber said he believed that the detective’s comment during Lee’s trial earlier this month was an intentional effort to “goad” Lee’s attorneys into seeking a mistrial because the case wasn’t going well.
Because he considered the mistrial to be the result of governmental misconduct, Schieber ruled that trying Lee a second time would violate his constitutional protection against double jeopardy.
“It is with a great deal of angst that I do this,” Schieber said.
But the judge said that he had to hold law enforcement officers to the same rules and standards that attorneys must follow to ensure a “level playing field” in the courtroom.
“For me to not do that would render those rules meaningless,” he said.
Schieber said that if there was no sanction against such intentional misconduct then anytime a law enforcement officer felt a case “was going south” he could say something inappropriate and prompt a mistrial.
“I can’t allow that to happen,” Schieber said.
He noted that after he declared a mistrial in Lee’s case, the jurors and alternates told him that they would have voted unanimously for acquittal. They also told him that the detective’s statement about knowing Lee implied to them that he had been arrested previously.
That demonstrated that the comment was prejudicial, the judge said.
Lee, who has been in custody since shortly after the March 2007 incident, was charged along with two other men with killing Thomas and wounding three others during a drive-by shooting near 30th Street and Agnes Avenue. The shooting sparked a high-speed chase in which suspects fired shots at pursuing police officers.
The two other defendants are in custody pending their trials.
In 2006, a jury acquitted Lee on charges that he killed a man during a 2002 block party and later gunned down a witness to that crime. At trial, witnesses who had initially identified Lee changed their stories and said they didn’t witness the shootings.
His trial for allegedly killing Thomas began Nov. 9 and was close to wrapping up Nov. 12 when Detective Danny Phillips testified about collecting shell casings and obtaining a DNA sample from Lee after his arrest.
Phillips was being cross-examined by Hastings about when he collected the DNA sample when he added “I knew him prior.” Hastings moved for a mistrial, which Schieber granted.
She later filed the motion that Schieber ruled on Wednesday. Phillips could not be reached for comment after Wednesday’s ruling.
After Wednesday’s hearing, Hastings said she appreciated the judge holding police accountable.
“They are not exempt from following the rules,” she said.
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