A Benton County Circuit Court judge declared a mistrial Wednesday in the case of a former Corvallis High School football player charged with rape.
Judge Matthew Donohue, who was presiding over Marco Brewer’s trial, granted the defense’s motion for a mistrial after the prosecutor in the case asked the alleged victim a question the judge deemed improper during the girl’s testimony.
Brewer’s defense attorney, Stephen Ensor, asked for the judge to declare a mistrial after Deputy District Attorney Kristen Farnworth asked the question during her examination of the witness on Tuesday. The question pertained to an allegation one of the alleged victim’s friends had previously made that Brewer had sexually assaulted the friend. The friend later recanted the allegation.
Donohue said the question could cause jury members to speculate about whether Brewer is a serial sexual abuser, which would prejudice the jury against Brewer and keep him from having a fair trial. The judge said he didn’t think there was a curative instruction he could give the jury members that would keep them from considering whether he had previously sexually assaulted someone.
Chief Deputy District Attorney Ryan Joslin said the charges against Brewer still stand and that he expects a new trial date will be set.
In her response to Ensor’s motion for mistrial, Farnworth stated her question would be a violation of Oregon Evidence Code. However, she said she asked the question in order to address the credibility of the alleged victim’s friend, not to address prior conduct of the defendant.
Farnworth argued that a mistrial is an egregious remedy that should be used only when a curative instruction is not possible. She said since the issue was regarding only one question she had asked and not repetitive violations that a curative instruction was possible.
Ensor asserted that because the prosecutor had asked the question regarding possible prior abuse by Brewer it could cause the jury to suppose there was evidence to support the claim. The defense attorney argued that Farnworth’s statement that the alleged victim’s friend had accused Brewer of sexually assaulting her, regardless of its purpose, “could lead the jury to base its determination of guilt for the charged crimes on defendant’s propensity to commit such offenses.”
Donohue said it was not lost on the court that all the work that had been put into the case, including the alleged victim testifying, would be undone. But he said he had to consider whether Brewer could receive a fair trial.
Brewer, who now is 18, was 17 when prosecutors charged him on July 28 with first-degree rape, first-degree unlawful sexual penetration, first-degree sexual abuse and two counts of second-degree sexual abuse. The alleged incident took place on May 14 at Brewer’s house following Corvallis High School’s prom.
In Oregon, a person who is 15 to 17 years old and who is charged with a Measure 11 crime must be tried and sentenced as an adult.