Judge in Rilya Wilson trial denies mistrial based on prosecutor’s standing with Florida Bar

The judge refused to grant a mistrial, despite the fact that one of the prosecutors technically was not a practicing attorney when the trial began.

11/27/2012 11:22 AM

11/27/2012 9:49 PM

An attorney for Geralyn Graham, the foster mother accused of murdering 4-year-old Rilya Wilson a decade ago, asked for a mistrial Tuesday morning after finding out that one of the prosecutors was not technically a member of the Florida Bar.

Following a full day of witness testimony Tuesday, Judge Marisa Tinkler Mendez told attorneys she would not grant the motion. Trial is scheduled to resume on Wednesday.

Assistant State Attorney Joshua Weintraub completed more than the required 30 hours of continuing education in August but failed to enter the correct course number, and the credits were not recognized by the Florida Bar.

Defense attorney Michael Matters said his request for a mistrial was based on Weintraub’s “individual participation in depositions of critical witnesses and motions to suppress evidence” in the pretrial months. Also, he said, Weintraub presented himself to members of the jury during their selection as an assistant to Miami-Dade County State Attorney Katherine Fernández Rundle .

“Whether he’s suspended for a small or humongous violation, it’s still a suspension,” Matters said. “It’s absolutely inappropriate, unethical and wrong. There is no justification for someone practicing law without a license.”

Neither Weintraub nor the other two prosecutors on the case — one of whom is his mother — explained the continuing education oversight to the court on Tuesday.

Weintraub was pulled from the trial Monday afternoon and temporarily suspended until his credits could be straightened out, said Don Horn, a chief assistants to the state attorney. Weintraub was reinstated and had returned to his seat at the prosecutor’s table before the judge announced her decision.

The trial proceeded with the state calling Willie Harris, supervisor for the Department of Children and Families. Harris was questioned on his decision to remove then 3-year-old Rilya Wilson from the home of her first foster mom, Pamela Kendrick, and place her in the care of Geralyn Graham, who is now standing trial for her murder.

The state’s next witness was Lilly Mae Tuff, a family friend of the defendant, who described Graham as “very entertaining, intelligent, impressive and elegant.”

She said Rilya was a quiet child with a “sad expression on her face,” and recounted how on one visit to Graham’s house she found her in the bathroom with Rilya who was sitting in the bathtub, holding Listerine in her mouth as punishment.

The 66-year-old defendant faces life in prison if convicted on charges of first-degree murder, kidnapping and aggravated child abuse. She and her domestic partner Pamela Graham were the legal custodians of Rilya Wilson when she was last seen in the fall of 2000. It was more than a year before DCF realized the child was missing.

If Graham is convicted, the mistrial motion that was not granted could be grounds for an appeal by the defense.

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