Whatever his motives, a decision on Thursday by Nogales Mayor Octavio Garcia-Von Borstel to drop by the Arizona Superior Court for Santa Cruz County during criminal proceedings could cause a mistrial for two defendants in a rape case.
The question was whether the visit at about 11:40 a.m. during proceedings was innocent, pure cordiality, political hob-nobbing or an overt attempt to influence a jury that has been tasked with deciding the fate of two men accused of raping a 15-year-old girl.
The two defendants are Salvador Lopez, 20, and Christian Moreno, 17.
According to testimony heard in a video obtained from the court and posted on the Nogales International Web site, the mayor came into the courtroom, greeted the defendants' family members and then hugged Moreno's attorney, Chris Scileppi, who was about to join a bench conference with Presiding Judge James Soto.
"What are you doing, Mr. Scileppi?" Soto asked after the lawyer had apparently embraced the mayor and then joined the bench conference.
Soto told Scileppi that his and Garcia-Von Borstel's behavior was "impermissible in front of the jury." He admonished Scileppi saying, "He (Garcia-Von Borstel) may not know better, but I think you should know better than to do something like that."
During the proceeding in which the jury was outside the courtroom, Deputy County Attorney Michael Jette told Soto that the prosecution would reserve the right to file for a mistrial based on the incident.
In his defense, Scileppi said that he was just informing his friend, the mayor, that he would not be able to join him on a social call.
Soto was unfazed. He called in the panel and gave instructions that each juror should ignore the behavior by Scileppi and Garcia-Von Borstel.
Matter of law
Referring to the mayor's visit, he told the jury, "Shortly before the noon recess there was an incident in the courtroom … with regards to a person … who was in the audience portion of the courtroom.
"I am instructing you as a matter of law that you should ignore anything you may have seen shortly before the noon recess. There was some inappropriate contact with Mr. Scileppi and this member in the audience. What you observed and regardless of your opinion of what you have observed (it) has nothing to do with the guilt or innocence of the defendants of this case."
The following is a partial transcript of the exchange among Presiding Superior Court Judge James Soto, prosecuting attorneys Michael Jette and Christina Vejar, and defense attorney Christopher Scileppi following Thursday's visit to the courtroom by Mayor Garcia-Von Borstel:
Christina Vejar: We conferred during lunch break and we have some concerns as to what the jury was witness to in regards to the mayor. At this time judge we are going to request an instruction be given to the jury regarding what they saw: That they need to disregard it and it was not appropriate to the courtroom, judge. We don't know how it affected the jury. We think there could be some serious bias involved with the mayor coming up to counsel and to the defendants' family in the manner in which it happened.
Judge Soto: When do you propose I give that instruction?
Vejar: Right now, judge, when they come in.
Christopher Scileppi: I'll object. Let me ask counsel. Did counsel see the jury react …?
Soto: I don't know what counsel saw. I know what I saw.
Vejar: I did not but Mr. Jette did and he informed me of what happened.
Scileppi: Well I don't know what happened.
Soto: What I saw was Mr. Garcia come in. I saw him greet the families that are over on this side and then I saw you over to the railing. I saw Mr. Garcia come over to the railing and I saw the two of you exchange what we call in Spanish as an abrazo, or a hug. And then you approached the bench. And then we had our discussion at the bench. That's what I saw. So then what is your objection?
Scileppi: First of all, as I mentioned at sidebar (judge's bench), it was totally inadvertent. And it wasn't, as I also mentioned at sidebar, it wasn't just a hug. I actually told him what I told you at the bar (judge's bench) that I wasn't going to be able to…
Soto: Let me give you a scenario. Let me see if this helps you understand what the nature of the problem is. Let's assume that the pastor of a local Catholic church walked into the courtroom and walked up to the prosecutor and he and Mr. Jette exchanged a hug at the rail there. Would you find that problematic?
Scileppi: I don't want to say…If I'm honest, no I wouldn't.
Soto: You don't see that as a problem? During court proceedings when a jury is present, you would not see that as problematic?
Scileppi: After we discussed at the bar (judge's bench) and you mentioned it to me I could understand where you were coming from. I didn't see any reaction from the jurors. I didn't know…
Soto: I will tell you, I was told by other staff that the jurors were watching you and they were watching the mayor. So the jurors are obviously aware. They saw what happened.
Scileppi: Is it inappropriate for high-profile people to come in and show support for someone? Not that this intentionally happened …
Soto: That's exactly the problem: You have a very high-profile person that comes in and is apparently showing some support for one side here. And that is what the nature of the inappropriate behavior and activity is.
Scileppi: Courtrooms are open to the public and I don't think it is inappropriate when high-profile people come in and show support for somebody who is on trial. Not that that intentionally happened in this case and certainly, it certainly wasn't planned.
Soto: I have to tell you I'm having qualms with that issue - whether or not this is something that you staged, Mr. Scceleppi.
Scileppi: Well, judge, I mean, if you want to talk to ask Mr. Garcia if this was staged or write an affidavit, I would be more than happy to … uh … please, by all means.
I mean he's a very … was thinking about this over lunch … He's a very close friend of mine and …
'Not the point'
Soto: But that's not the point. I don't care whether you know him or don't know him. That's not the issue.
Scileppi: Well, I'm telling you. If you think it was staged, then that's problematic. That's a concern to me. Uh, I didn't know when he was going to come in; that he was going to come in; when he was going to come in.
When I saw him, I didn't think, "Oh mayor …" You know.
And when … uh, I just saw him … uh, you know as … you know I thought he was coming, you know probably to see me here and hang out here until we were going to get together. I just told him, "No. I'm not going to be … I'm not going to be able to see you today. I'm not going to be able to do this. You know, I'm in the midst of this and I don't know how long before we're getting out."
So, as far as it goes if you'd like to have him come in and if you'd like to ask him questions as whether or not this was staged. I'd like to allay those concerns because that shows … it reflects poorly on me.
Soto: Well it does. And that's …You should know that it causes me great concern about you what I saw shortly before the noon hour. I still think it's highly inappropriate. It bothers me that you don't see it as a problem even when I give you the example of a Catholic priest in a small community coming up and hugging the prosecutor. You don't see that as problematic … I would tell you that if the county attorney's office did that, I would probably declare a mistrial.
Scileppi: In retrospect, I just think that if there is going to be a limiting instruction (to the jury) I would ask that it be … again, I don't think or know that he (Garcia-Von Borstel) knows the family … I didn't know that he even spoke to the family.
Soto: I will tell you that I saw him come in and seemed to say hello … at least say hello or at least talk to the members … people that were sitting in the front first row.
Scileppi: I had no idea and certainly did not ask him to do this.
If you're going to do a limiting instruction that you limit it to that, "You don't read into anything as far as the mayor coming in, etc." But not mention it was inappropriate and cast aspersions on me with the jurors because I think that would prejudice my client.
At this point, attorney Hector Montoya, who represents Lopez, interjected, saying Jette and Vejar should have been more "affirmative and proactive in stopping the behavior" when they saw the mayor greeting family members.
Soto: I think he (Jette) did that and then I saw him sit down. And then when I directed counsel to come forward (to the bench) prior to Mr. Scileppi coming forward… I assume you (Scileppi) were not aware he was back there … you saw him … I don't know if you asked him to come forward or he came forward and you gave each other a hug at the railing. And frankly, it's not even a close question. I'm shocked that you don't see the impropriety of that, Mr. Scileppi.
Scileppi: I told you I did, judge. I told you when I went up to the bar, I thought we discussed that.
Jette: From the state's perspective, we just want to put on the record that we find that behavior grounds for potential mistrial l… There is no safety net that Mr. Scileppi plays with that says what behavior is appropriate and not appropriate. So the state wants to put on record that this behavior constitutes a potential mistrial. And the state reserves its right on the record for a mistrial.