The opinion
JUSTICE BARRY, specially concurring:
I agree with the results reached and most all of the observations of the majority, and, by my view, a fair trial was impossible. Proper intervention by the court may have cured the adverse situation and circumstances presented early in the trial, but I am at a loss to determine how so, short of ordering a mistrial early on.
I would place the primary blame upon counsel for the defense. The defense obviously has known the facts of this case very well for some eight or nine years; the case has been tried fully before, appealed twice before; one of the three defense witnesses’ testimony was in fact read into the record from the previous trial; and defense counsel misstated anticipated evidence in his opening statement, both with regard to plaintiff’s speed and the color of the traffic light control at the intersection. I trust the defense will not introduce error so as to create another opportunity for a mistrial when this matter is retried. The plaintiff’s questionable self-help tactics will then be unnecessary as a retort.
I expect the participants will recognize what is proper professional behavior during the course of the new trial. It is unfair to their clients who have paid with their time and money to do otherwise, as they have here for a span of many years.