“ If there is A Concussion Then They Have To Convict “
By Michelle Lagos
The deputy public defender’s request for a mistrial in the case against Eric Wayne Smith, due to prosecutorial misconduct, was denied.
Deputy Public Defender Emily Fisher argued that Deputy District Attorney Alex Kian’s “entire closing argument [was] a misstatement of the law and misleading to the jury.” Fisher argued that the People filed for serious bodily injury but failed to prove it. She stated that it is a misstatement of the law on Mr. Kian’s part to say that a concussion alone qualifies as serious bodily injury.
Mr. Kian went on to state that it was up to the jury to decide if the victim did suffer a concussion. However, the medical records do verify that the victim did have a concussion, which under the law does qualify as a serious bodily injury. Mr. Kian continued to argue that if the jury wanted to dispute those charges then they would need to find the entire medical staff incompetent.
Despite the judge having agreed with Mr. Kian, Ms. Fisher continued to argue that it is up to the jury to decide whether or not the victim’s injuries quality as serious bodily injury. Ms. Fisher stated that Mr. Kian only proved minor 
injuries had occurred. She went on to say that Mr. Kian purposely quoted the definition of serious bodily injury in a way that favored his argument. According to Ms. Fisher, he was “missing a whole phrase,” leaving out the fact that in order to prove without a doubt that serious bodily injury occurred the victim would have had suffered from “serious physical impairment.” Ms. Fisher went on to state that Mr. Kian was “going after serious bodily injury as the same definition as great bodily injury…and that a minor injury is [not] sufficient” enough for Mr. Kian to seek out a felony charge in this case.
The judge interrupted Ms. Fisher’s argument to state that she agreed with Mr. Kian. The judge did not believe that Mr. Kian was misleading and that his interpretation of the law was correct. The judge denied Mr. Fisher’s request for a mistrial, explaining that “[they] are all [there] trying to come up with what the law says…if you and I happen to disagree on something it’s not misconduct on my part nor your part.”
Later that day, the jury finished their deliberation. Mr. Smith was acquitted of all charges.
