New said the surprise identification by Ryan Tulino violated the court rule obligating a prosecutor to disclose to defense lawyers in advance incriminating evidence - including identification testimony.
New said Tulino's "blurt-out" Monday was also unfair to Assistant District Attorney Richard Sax. To counter defense claims of prosecutorial misconduct, she said, Sax would have to testify and attack his own witness' credibility.
The judge scheduled a hearing for Wednesday to see when - or whether - the case may be retried.
Though New had said she would rule Tuesday on the defense mistrial motion, that did not dilute the emotional impact on families of the victim or defendants.
Sale's mother, Laverne Sale Young - whose son has been portrayed by the defense as equally intoxicated and aggressive in the brawl between a suburban bachelor party and a group from a Fishtown tavern - left court before the ruling and fainted in an anteroom. Paramedics were called. Young's husband, Michael, said she was OK.
At issue Wednesday for New is whether Tulino's words were erroneous or spontaneous, or prosecutorial misconduct that should bar a new trial.
Kirchner's attorney, Jack McMahon, said he would ask to bar a retrial under the constitutional provision against double jeopardy - trial twice for the same crime.
McMahon said that if prosecutorial misconduct is established, a judge may bar retrial on the grounds that the defendant could not be fairly tried.
"A trial is supposed to be fair, with full disclosure," McMahon said afterward. "It's not supposed to be sneaky. That's what we all deserve, but that's not what happened in this case."
Sax said he was "very disappointed. We have respect for the court, but we do not in any shape or form agree with this decision."
Sax said he did not hide identification testimony from the defense. Tulino had never before identified Kirchner and Sax said he did not ask Tulino whether he could identify any of the three. The identification was elicited in cross-examination by Brian J. McMonagle, who represents Bowers, Sax said.
Much of New's analysis of McMahon's motion to bar retrial may focus on a closed-door conference between judge and lawyers before court started Monday.
Defense lawyers said Sax told them Tulino was not an identification witness. Sax said afterward that Tulino approached him before going on the witness stand with a "rhetorical question: 'What would happen if I told you I recognized someone?' "
Sax said he told Tulino that "identification is not an issue in this trial" but that his responsibility was, "Tell the truth."
It was the second surprise identification by a prosecution witness. On Friday, Sale's friend Daniel Curran identified Kirchner as the man who kicked Sale in the head. McMahon then moved for a mistrial, which New denied.
Though he called the surprise identifications misconduct, McMahon stopped short of accusing Sax of purposely misleading him.
"That's for Richard Sax to say," said McMahon. "That's not what I'm about. I'm here to defend Frankie Kirchner."
Besides Kirchner, of Fishtown, the defendants are Bowers, 37, of Oxford Circle, and Groves, 48, of Kensington. They were part of a group bused to the game that day from Moe's Tavern, a Fishtown pub.
McMonagle declined to comment about whether he would join McMahon's motion. Groves' attorney, Scott DiClaudio, praised the mistrial ruling: "After 21/2 days, not one witness has said my client was there at the time of the fatal kick."
Although lawyers for Bowers and Groves have acknowledged their clients hit Sale during the fistfight, McMahon has said Kirchner never touched Sale and was fighting elsewhere in the South Philadelphia parking lot.
Kirchner has the most to lose. He alone is charged with first-degree murder and faces life in prison without parole if found guilty. Bowers and Groves are charged with third-degree murder, which carries 20 to 40 years in prison.
Kirchner remains in custody without bail, as with all first-degree murder defendants. Bowers and Groves are free after posting bail.
Contact staff writer Joseph A. Slobodzian at 215-854-2985, email@example.com, or @joeslobo on Twitter.
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