Juror photo leads to Tabor mistrial

The Shawnee County District Attorney's Office plans to reschedule a Topeka murder case after a reporter's tweeted photograph led to a mistrial Wednesday.

Opening statements began Tuesday in the trial of 20-year-old Austin Tabor, who is charged with shooting and killing 20-year-old Matthew Mitchell after hours on the grounds of Topeka West High School in 2010. The trial came to an abrupt halt Wednesday morning because of a photo posted online by a Capital-Journal reporter who live-tweeted the trial's opening on Tuesday.

"One of the photos apparently showed one or more of the jurors," said Lee McGowan, the district attorney's spokesman. "It was brought to the court's attention, and ultimately a mistrial was declared."

According to rules established by the Kansas Supreme Court, “Individual jurors shall not be photographed. In courtrooms where photography is impossible without including the jury as part of the unavoidable background, the photography is permitted, but close-ups which identify individual jurors are prohibited.”

Capital-Journal Publisher Gregg Ireland said the reporter, Ann Marie Bush, was aware of the rules.

“A photo inadvertently was posted that contained the profile of a juror in the background,” Ireland said. “The Capital-Journal regrets the error and loss of the court’s time. We will use this as a training opportunity for our staff members as they strive to bring information to our readers in digital and print media.”

District Court Judge Mark Braun, who is presiding over the trial, had agreed to allow camera phones in the courtroom but ordered that no photos be taken of jurors, McGowan said.

"It's for their peace of mind," McGowan said.

McGowan said prosecutors would try to schedule a new trial in June or July, with a rescheduling hearing set for 3 p.m. Thursday.

Mitchell's cousin, Houston James, said he understood the judge's decision, but it was still disappointing.

"I've been waiting for this day about two years," said James, who was set to testify in the case. "It was going smoothly. It was going straight smoothly until today."