PEORIA, Ill. (WMBD) — It sounds like a movie. But a man, acting as his own attorney, has managed to convince an appellate court that he should not have been tried a fifth time for a 2008 shooting.
On Thursday, the 3rd District Appellate Court in Ottawa sided with Leversus Mabry and threw out his 2020 conviction on the charge of aggravated battery and the subsequent 36-year prison term.
For Mabry, 47, it means that he’ll get out of prison soon. He’s been in custody since 2008 when the Aug. 21, 2008, shooting occurred.
The judges, led by Mary McDade with Adrienne Albrecht and Linda Davenport concurring, said now-retired Judge Albert Purham erred when he failed to use “any exercise of discretion before declaring the mistrial, even though it had multiple options available for its consideration.”
The issue was that at Mabry’s fourth trial on the charge of aggravated battery — he’s gone before a jury five times in total — he, while acting as his own attorney made mention during his opening statement that there had been prior “proceedings.” Purham took issue with that, saying it could prejudice the jury.
Mabry tried to push back, saying he didn’t mind but the judge quickly declared a mistrial. The case was set for a fifth jury trial which resulted in a conviction in 2020.
The trio of appellate judges felt that Purham’s decision was wrong.
“The fact that the offending statement was made during defendant’s opening statement to
the jury presented another opportunity for the court to take corrective action and avoid declaring the mistrial,” the wrote.
Given Purham’s move, they felt the fifth trial where he was convicted should have never taken place and thus, vacated that conviction along with the 36-year prison term.
“. . . we find there was no manifest necessity for the mistrial declared in defendant’s fourth trial, the denial of defendant’s motion to dismiss the charges pending against him following his fourth trial was error; defendant’s fifth trial violated his constitutional protection against double jeopardy and his conviction is vacated. Further, double jeopardy principles bar retrial of defendant on both charges,” the panel of judge wrote in their 9-page order.
The victim was shot when he opened the back door of his girlfriend’s house shortly after 8 a.m. that day. He had seen two people by his car which was parked outside of the house. When he opened the door, a masked man grinned at him and shot him twice in the arm.
He had gone to trial five times. The first time, in May 2009, jurors deadlocked. Jurors found him guilty in August 2009.
But that was thrown out by a different appellate court panel in December 2011 because they thought the judge at the second trial should have declared a second mistrial when a defense witness testified about a second shooting involving the victim. The court held the testimony was irrelevant to the case being tried and could have tipped the scales against Mabry.
He was convicted at a third trial but that too was sent back in 2016 because a different trio of judges in Ottawa found his attorney erred by not calling a woman who was Mabry’s alibi witness. The woman testified at prior trials.