In defending Abril&squo;s actions in talking to a juror, Lindsay said that the potential juror had initiated the call, leaving a message for the Sheriff on Friday. The potential juror provides services to the Polk County Sheriff&squo;s Department, and &dquo;was the only person who provided certain serves to the sheriff,&dquo; Lindsay said.

Abril returned the call on Saturday evening, while riding in a car with Ronnie Murtaugh and Nancy McKaig on their way to Lindsay&squo;s house to go over the case, Lindsey said, handing over affadavits to the court certifying these facts. Abril further informed his attorneys, Lindsey and Baiba Bourbeau, on Monday morning about the phone call, Lindsay said.The prosecutors learned of the phone call before Lindsay had a chance to inform the court, Lindsay admitted.Nontheless, Lindsay said it was &dquo;a bit unusual&dquo; to think that Abril was trying to fix the case when he had the conversation in front of two witnesses and told his attorneys, officers of the court, about it. He said Abril&squo;s case was not discussed and urged the judge to continue the trial.

No jury has been empaneled, Lindsay pointed out, and so no sitting juror has been tainted by contact with the defendent. In fact, Lindsay pointed out that 180 potential jurors were left to be questioned, and of the seven questioned so far, the state had accepted four.

The sheriff&squo;s phone call to a potential juror &dquo;raises issues and we need to investigate and get to the bottom of it,&dquo; Lindsay said, &dquo;but I question whether a motion for mistrial is appropriate. It is important to go forward and try to empanel a jury and get this case tried.&dquo;

But prosecutor Coman vigorously disagreed, saying the state&squo;s chances for a fair and impartial trial were compromised.

&dquo;Assuming the initial call came from the other party,&dquo; Coman said, &dquo;He (Abril) had no business returning that call. There is no spin you can put on it. This is symptomatic of the mind set that exists with this defendent, that he can do whatever he wants and not be held accountable.

&dquo;If Joe Q. Public did this, it would land them in jail. You can&squo;t come in here and just say, &squo;Well, I just returned a phone call.&squo; That position flies in the face of this court. &squo;I can do what I want.&squo; If this shoe was on the state, the rafters would be raised. Prosecutorial misconduct. You&squo;d have no choice but to grant the motion.

&dquo;There is no explanation that justifies the conduct of this defendant,&dquo; Coman continued. &dquo;A sworn officer for 21 years. His position as Sheriff. To have done something like that sends the message that he&squo;s above the law and no one is above the law.&dquo;

In addition to seeking a mistrial and change of venue, Coman asked the judge to further assess Abril for all the court costs incurred in trying to try the case in Polk County Superior Court, and to revoke his bail bond, sending Abril to jail.

&dquo;His own bad judgement caused this,&dquo; Coman said.

Judge Guice noted that in his order denying a change of venue Judge Downs had concluded there was &dquo;insufficient evidence at this time&dquo; to move the trial to another county, but further said that the motion may be reconsidered by the trial judge &dquo;should it appear during jury selection that a fair trial cannot be had.&dquo;

Guice noted that not only was there the phone call from Abril to a potential juror, but that there had been incidental contact between Abril and potential jurors Monday. He noted that several of the potential jurors questioned so far had problems with the case, due to personal relationships with parties involved.

&dquo;I am not sure we can find a jury at this point,&dquo; Guice said. The judge further worried aloud about the effect on the pool of potential jurors of the publicity which will now arise over the call for a mistrial.

&dquo;This certainly doesn&squo;t help the situation,&dquo; Guice said.

Lindsay said going forward all jurors could be asked if they knew of the mistrial motion and its cause, and that could be factored into jury selection.

&dquo;I was concerned about incidental contact, shaking hands and hugging jurors,&dquo; Guice said. &dquo;I am very concerned about a telephone call to a juror. The temptation is to think, &squo;Do I need to put this defendent in custody?&squo;&dquo; But Guice worried that would further cause publicity which might predjudice the case across the region.

Guice had harsh words for Abril, as a law enforcement officer and sheriff.

&dquo;My goodness,&dquo; he said. &dquo;John Doe knows not to have any contact with potential jurors if he is a defendent. you don&squo;t have to be a graduate of Harvard to know that.&dquo;

Coman said he had talked with the District Attorney in Buncombe County and had confirmed that should Guice wish to move the case there a courtroom would be available in October.