Juror looks up definitions, prompting judge to declare mistrial in Trump flag, BLM rally case

·3 min read

Jun. 16—A judge declared a mistrial Tuesday in the criminal case against Mark Kimball, the disrupter of a Black Lives Matter rally in Manchester, after a juror went online to look up definitions of words used in the trial.

The trial was in its second day at Hillsborough County Superior Court, where witnesses testified that Kimball, 20, and his father drew handguns as BLM rally participants confronted them in May 2020. Witnesses said the two disturbed a moment of silence with Manchester police for George Floyd, who was killed while in Minneapolis police custody.

Kimball faced three felony charges of criminal threatening.

Jurors looked up two words — "provocation" and "aggressor" — according to a source. The jury had asked Superior Court Judge Will Delker for the definition of "provocation," but still looked up both words themselves, a source said.

New Hampshire court system spokeswoman Susan Warner said jurors turn in their cellphones at the beginning of the day and get them back when they leave.

Throughout the trial, the judge repeatedly instructed them not to consult outside sources or do research on their own, she said.

"Unfortunately in this case, the Court found that a juror was able to inappropriately access their phone and use the internet during deliberations," Warner said. The juror will not be punished, she said.

Kimball's defense lawyer, Justin Shepherd of Nashua, told the Union Leader he thought he had a good shot at not-guilty verdicts. Nonetheless, he asked for the mistrial.

"The jury is bound by the instructions the judge gives," Shepherd said. "When you go to a different source and you start looking up definitions, it sullies the jury instructions."

Delker ordered the trial rescheduled as the docket permits.

"At this point, we're going to go to trial again. There's nothing stopping us. The evidence is the same," said the prosecutor, Assistant Hillsborough County Attorney J. Bradley Bolton.

Testimony focused on the actions of Kimball and his father, Scott Kimball. The elder Kimball drove down Valley Street in a pickup truck with a Trump campaign flag and Confederate flag bumper sticker. He honked the horn, and both shouted during the moment of silence. They then turned around and parked in a lot across from the police station.

When about a dozen people moved toward the truck, both men came out with handguns.

Bolton and Shepherd both said something new came out at trial. A witness testified that Mark Kimball used a racial slur against one of the people at the event. The lawyers said that was never in police reports, and Shepherd said Kimball adamantly denies it.

Kimball never took the stand, and Shepherd called no witnesses. He said Kimball unholstered the gun in an act of self-defense.

Bolton said state law does not allow someone to provoke a fight and then claim self-defense. That obviously was key to the jury, since it focused on the definition of the word provocation.

Shepherd said his client is disappointed with the outcome.

"He's been living with this cloud over his head. It's very stressful for him," Shepherd said.

Earlier this year, Scott Kimball, 43, pleaded guilty to two counts of criminal threatening and was sentenced to a year in jail, probation and racial sensitivity training.

mhayward@unionleader.com

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