GUILDERLAND — After unprecedented delays and the admittance of controversial fingerprint evidence, Hashim Burnell’s murder trial was declared a mistrial by Albany County Judge Steven W. Herrick on Monday.

Burnell, who was on trial for the shooting death of Todd Pianowski at his Guilderland apartment last May, will be remanded to Albany County’s jail until next September when a new jury selection will begin.

The high-profile murder trial started early last month, then was suspended on April 6 after 11 witnesses had testified over four days.

The trial did not reconvene until Monday, May 1, as Herrick contemplated admitting newly discovered fingerprint evidence. The defense’s original case relied heavily on the assertion that there was no physical evidence linking Burnell to the murder scene.

All of that changed after State Police admitted to making a mistake and told prosecutors that the two previously-unidentified fingerprints found at the murder scene were now positively identified as belonging to Burnell.

The two prints found were from the same finger, according to Chief Assistant District Attorney Michael McDermott.

Herrick allowed the fingerprints to be admitted as evidence last Friday, three days before the trial was to resume.

Pianowski was shot in the head and torso on May 5, 2005 with a .40 caliber handgun; he was 22 years old and attending Hudson Valley Community College. Pianowski’s girlfriend, Laura Parker, returned to the apartment they shared at 1702 Western Ave. and confronted the killer, Guilderland Police Chief James Murley told The Enterprise at the time.
Murley said then he believed the shooting was a "drug-for-money deal." A massive search by several agencies ensued and Burnell was apprehended that night. The defense, since Burnell’s arraignment, has maintained that he is the wrong man and is innocent.

Jury worry

The unsequestered jurors were sent home for nearly a month, potentially exposing them to damaging media coverage and private comments despite Herrick’s explicit warnings against such sources. Herrick told jury members to judge fact from courtroom proceedings and not from what they may hear from various sources at home.

The jury consisted of nine women and five men; two of the 14 were alternates.

Once the trial reconvened, and Herrick ruled on the fingerprint evidence, he had to determine whether or not the jury members’ understanding of the case had been compromised.

Before calling the jury into the courtroom on Monday morning, Herrick called juror number eight, a middle-aged white woman, to his bench along with prosecution and defense lawyers. Burnell asked the judge to come to the bench and be a part of the discussion.
"I think it has to do with a child or family member," Herrick said before allowing Burnell to come to the bench.

The issue dealt with juror number eight’s ability to serve on the jury because of a family member’s involvement with an ongoing district attorney’s case. After a lengthy 10-minute discussion with juror number eight, and an additional five-minute discussion among themselves, Herrick told her to remain on the jury.
"I don’t think it’s appropriate for the court to ask the jury to anticipate and speculate on evidence they have not seen," Herrick said. "I will ask them if they have seen anything, in that they can no longer serve."

Herrick called the 14 jurors into the courtroom and asked them about their ability to serve on the jury after the three-week adjournment.
"Has anything occurred to any of you to cause you to feel you can no longer serve as a fair and unbiased jury"" Herrick asked the jury members. He told jurors to raise their hands if they saw or heard anything about the Burnell trial outside of court. None of the jurors raised their hands and several shook their heads no as Herrick questioned them.
The jury was then told about the fingerprint evidence, which Herrick referred to as a "legal matter" when they last spoke in April.
"The legal matter is evidence"which was not known until April 5th," said Herrick, "The evidence in this case has and will come from the court"What weight you will give that evidence is up to you to determine."

Burnell’s attorney, Joseph Muia, asked Judge Herrick to speak with his client in chambers before the court proceeded any further.
"There is an issue at this point in time"the issue of a mistrial," Herrick told jurors.

Mistrial

Before Herrick called the jury into session, he discussed the possibility of a mistrial with the lawyers on both sides.
"It’s not a secret"that these fingerprints were discovered on April 5th," Muia told the court. "There was a discussion in chambers about a mistrial in this case."
"I don’t think that a mistrial should be a trump card for your client," Herrick responded.
Citing issues of evidence and client-attorney privilege, Muia said, "It’s not intended as a trump card. I want to see if we have a jury."
"With all due respect, you have had plenty of time," said Herrick, referring to Muia’s request for a private-chambers meeting with Burnell to discuss mistrial options and ramifications. Herrick warned Muia that a decision must be made whether or not he and his client would seek a mistrial or waive their mistrial rights.

After a short recess, Burnell and his attorneys returned to the courtroom. Burnell’s parents, who were sitting with other family members and friends in the partly-filled courtroom, became visibly upset after speaking with one of their son’s lawyers.

Muia, in talking to the judge, began with a long list of grievances about his clients case, including: right to counsel issues at the start of the trial; a three-week trial delay; the court’s admission of fingerprint evidence four days into the trial; a jury member’s failure to be removed after learning a family member is a part of an ongoing district attorney’s case; and accusations that the State Police were induced by the prosecution to offer the new evidence.

All of these reasons were grounds for a mistrial, Muia argued.
"We are extremely prejudiced at this point," said Muia. "Mr. Burnell cannot get a fair trial.
McDermott protested the claims for a mistrial, saying that the prosecution had done nothing to compromise the case and that there were no "intentional evidentiary circumstances" created.
"There was no bad faith on part of the prosecution," said McDermott.

Herrick said the trial would be placed back on the court calendar for jury selection at a later date if a mistrial were granted.

New trial

Burnell asked the court if he could speak with his parents before making a final decision on a mistrial submission.

After a brief and emotional meeting, Burnell decided to proceed with a mistrial application.
"You understand that I will be placing this back on the court calendar," Herrick told Burnell. "Until I speak with your attorneys, I will not be able to determine a court date"until September.
"There is no double-jeopardy here," Herrick said, adding that Burnell will be retried with a new jury.

After Burnell and his attorneys agreed to the conditions, Herrick declared the case a mistrial and set a Sept. 5 date for jury selection. Burnell was then taken back into custody and removed from the courtroom.

Herrick then called jurors back into the courtroom.
"Ladies and gentlemen, you will note that Mr. Burnell is not present," Herrick said as he told the jury a mistrial was granted.
"Your service as jurors is now concluded. I want to thank you for your patience and your service," Herrick continued, "You may speak to anyone you want about this case, but you are not obligated to."

Herrick apologized to jurors for the lengthy ordeal, saying that, compared to other legal systems around the world, the American legal system is the best despite its occasional flaws.
"I would like to apologize on behalf of the criminal justice system," Herrick told both families, saying he knows it must be a very difficult time for the families.