LOCKPORT – The judge made a mistake, the defense attorney called him on it, and the result was an instant mistrial Monday in the case of a Town of Lockport business owner charged with violating the town’s law against flashing signs.
Now the trial of David J. Mongielo will be delayed well into autumn, as Town Justice Raymond E. Schilling gave attorney Frank T. Housh until Oct. 1 to file motions, including requests for Schilling to recuse himself or to order that the case be moved to some other town court.
Housh – Mongielo’s on-again, off-again lawyer who said he was retained most recently by Mongielo for the sign case just last Thursday – said he has another trial to prepare for. So he asked for 60 days to deliver his motions. Schilling gave him the Oct. 1 deadline and, after town prosecutor Bradley D. Marble has a chance to reply, the motions will be argued at some subsequent date.
The LED video screen in front of Mongielo’s Robinson Road auto repair shop has caused all the trouble.
Mongielo, a past unsuccessful candidate for town supervisor who is running for that office again this year, was convicted twice in nonjury trials of separate violations of the town’s law banning signs that change “format” more than once every 10 minutes.
Last fall, Niagara County Judge Matthew J. Murphy III overturned the second conviction and Schilling’s finding that Mongielo violated the terms of his conditional discharge on his first conviction, because Housh convinced him that Mongielo should have had a jury trial.
Monday, 41 prospective jurors watched as Schilling began the proceedings without a court reporter present, although he said a digital recording device was in use.
With the would-be jurors in the courtroom, Housh immediately objected to the proceedings. He asked for Schilling to recuse himself, to order a change of venue, or to rule that Mongielo was the victim of selective prosecution, because no one else has ever been prosecuted for allegedly violating the flashing sign law.
Without asking Marble to respond, Schilling rejected Housh’s motions.
“We have discussed those issues before,” Schilling told Housh, referring to Housh’s appearances on Mongielo’s behalf last fall. Housh had previously absented himself from the case for several months, while Mongielo, on his own, tried unsuccessfully to persuade Schilling that his court had no authority over him.
“In and of itself, the fact that you just announced to this jury that you’ve heard this case before constitutes reversible error,” Housh said.
“If that’s reversible, so be it. Let’s get on with the trial,” Schilling replied. He then swore in the prospective jurors.
Moments later, Housh objected to the lack of a court reporter. Schilling called a break. About 20 minutes later, a court reporter turned up. After another 15-minute delay, she transcribed Housh’s successful mistrial motion.
Housh cited a section of law that Schilling had violated. “You can’t swear the panel outside the presence of a court reporter,” he told the judge, then asked for a mistrial.
Schilling granted the request.
Housh told reporters that besides having Schilling recuse himself or order a change of venue, he would do some research to see if another trial might constitute illegal double jeopardy for Mongielo.