Erika Mendieta is accused of killing her infant daughter Emmily.Charla Jones/The Globe and Mail
A Crown prosecutor whose eye-rolling and contemptuous gestures scuttled a jury trial Monday could potentially be charged with obstructing justice or professional misconduct.
But most judges and lawyers feel that the more likely outcome for prosecutor Paul McCulloch Alexander - a gregarious, unconventional Toronto prosecutor - will be to serve as a wakeup call to lawyers who fail to restrain their emotions.
The jury at the Erika Mendieta murder trial was discharged Monday on the basis that Mr. Alexander's conduct had irretrievably harmed the proceeding. It was the second trial for Ms. Mendieta, who is charged in the beating death of her toddler, Emmily.
The legal community reacted to the bizarre incident with disapproval and surprise that Mr. Alexander could not control his emotions.
Douglas Hunt, a former assistant deputy minister at the Ontario Ministry of the Attorney General, said that if there is persuasive evidence that Mr. Alexander intended to sway the jury, he could be charged with obstructing justice. However, he predicted that Mr. Alexander's fate will be an admonishment and nothing more.
"Based on what I've seen and heard, this was a case where there was certainly an innocent explanation - if not a good explanation - for him being there," Mr. Hunt said. He said, for example, that Mr. Alexander may have been acting as an informal adviser to the prosecutors.
At the end of Ms. Mendieta's testimony, the jury sent the presiding judge a note complaining that Mr. Alexander, a prosecutor at her first trial, had distracted it. Ms. Mendieta later testified that he intimidated her by making faces while sitting in the gallery as a spectator.
An Ontario judge with decades of experience as a trial lawyer and jurist said that Mr. Alexander likely felt a "strong emotional investment" in the case and wanted to see Ms. Mendieta testify.
"I'm quite upset about it," said the judge, who asked to remain anonymous. "I find it very, very unprofessional and a form of egregious conduct. I have no doubt the Attorney-General has to distance himself from this. I would think a complaint would have to be filed with the disciplines section of the law society."
The judge said it would not surprise him if someone - including the trial judge in the Mendieta case - filed a professional misconduct complaint at the Law Society of Upper Canada, the governing body for Ontario lawyers. "I know some judges have filed complaints about lawyers who appeared before them and acted unprofessionally," he said.
John Rosen, a veteran Toronto criminal lawyer, said there is a vast difference between a trial lawyer acting theatrically, and a prosecutor expressing contempt during a proceeding he was intimately connected to. "It is hard enough for witnesses to testify to begin with, without that," he said. "There is a feeling of ganging-up to this."
A cross-section of friends, lawyers and judges described Mr. Alexander as a gregarious raconteur who took philosophy at the University of Toronto before entering the university's law school.
"He is very, very expressive," said a Crown prosecutor who requested anonymity. "I think he exudes what it means to be a Crown. He is very principled and gives good advice."
Mr. Alexander has bounced around the system over the past decade, working in seven or eight courthouses as a prosecutor in the trenches. In between, he did a two-year stint arguing summary appeals in the Superior Court of Ontario.
A workaday prosecutor in Toronto's busy Finch Court courthouse for the past couple of years, Mr. Alexander has an unconventional side. He grew up as Paul McCulloch. He married a fellow U of T law student in 2000 and the couple decided to create a new, shared surname. After opening a phone book to a random page, they settled upon Alexander.
Mr. and Ms. Alexander are fond of professing their love for one another, and often describe themselves as "The Entity." Their home phone message states: "Hello, you have reached the entity that is Kim and Paul Alexander. No aspect of the entity is home to take your call right now."