Juror’s cell phone search in Black Lives Matter case causes mistrial

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Mark Kimball as seen in Hillsborough County Superior Court Northon June 15, 2021. Photo/Pat Grossmith

MANCHESTER, NH – The trial of a city man accused of pointing a loaded handgun at Black Lives Matter protesters last year ended in a mistrial Tuesday after a juror, during deliberations, used a cell to do some research in the case.

The trial of Mark Kimball, 20, of Manchester, charged with three counts of criminal threatening, opened on Monday in Hillsborough County Superior Court Northern District.  It ended Tuesday when a judge learned a juror had googled definitions for “aggressor” and “provocation” during deliberations.

At one point, jurors asked a question concerning the definition of “provocation,” according to the prosecutor, Assistant Hillsborough County Attorney James Bradley Bolton.  A definition was written on the paper containing the question, a definition that did not match the legal definition for provocation contained in the judge’s instructions, Bolton said.

Judge N. William Delker then inquired of the jurors where that definition came from and learned a juror had googled “provocation” as well as the definition for “aggressor.”  Bolton said there are legal definitions and then there are “Webster’s definitions.”

Delker declared a mistrial.

Susan Warner, communications manager of the New Hampshire Judicial Branch, said the note the jury sent to the judge raised concerns and, when asked, “they admitted they had accessed the Internet.”

She said jurors turn in their cell phones at the beginning of the day and they are returned when they leave for the day.  They are instructed repeatedly by the judge throughout the trial not to consult any outside sources, or to conduct any research on their own, Warner said.

“Unfortunately, in this case, the Court found that a juror was able to inappropriately access their phone and use the internet during deliberations,” she said in an email.  

The case will be retried although it has yet to be scheduled.

The driver and a passenger of this truck, father and son Scott and Mark Kimball, were arrested by police. Photo/Stacy Harrison

The accusations stem from the May 30, 2020, Black Lives Matters protest outside the Manchester Police Department. The initial protest began downtown on Elm Street but some of the protesters, about 50 to 100, continued on to the station to meet with police officials.

 Kimball was in the passenger seat when Kimball’s father, Scott, drove a black pickup truck, with a Trump 2020 flag unfurled in the back and a confederate flag sticker on the bumper, past the police station.  At the time, Bolton said the protesters and police officers had reached a consensus and had bowed their heads to observe a moment of silence for murder victim George Floyd, a black man killed by a Minneapolis police officer who pressed his knee into Floyd’s neck for about nine minutes.

That period of silence, Bolton said, was broken when Scott Kimball, 43, beeped the horn, and the two men shouted profanities and put up their middle fingers at the crowd as they passed. 

Scott Kimball made a U-turn and parked in a lot across the street from the station, about 50 to 75 yards away.

Protesters, as well as police officers, were running toward the truck when a “pop” was heard (which turned out to be a water bottle thrown at the truck by a woman in the crowd) and people yelled, “He’s got a gun!  He’s got a gun!”

Both men got out of the truck and pointed guns at the protesters.

“You want some of this?” Mark Kimball said while holding a gun, according to witnesses.  He is accused of pointing a loaded 9 mm handgun at the crowd and specifically at two men, and then holding it pointed down at the ground.  He got back into the truck and officers quickly arrested him and confiscated the loaded handgun which held 16 rounds.  His father was also unarmed and taken into custody.

Defense attorney Justin Shepherd of Nashua maintained his client acted in self-defense as the crowd moved toward him.

“It was reasonable to assume with that group approaching that it meant to harm,” Shepherd said.

Prosecutor Bolton maintained Kimball could not use a self-defense claim since he was the one who provoked the crowd.    Bolton also dismissed the self-defense claim since police officers were on the scene, making it unnecessary.

Kimball’s father was armed with a loaded .44 caliber handgun.  Scott Kimball pleaded guilty in February to two counts of criminal threatening and was sentenced to 12 months in jail with pretrial credit of 254 days.  He was ordered to undergo racial equality training and a mental health evaluation.