The future of murder charges against three men in the 2009 beating death of a man outside the Phillies' ballpark will be decided after an Oct. 18 hearing, a Philadelphia judge ruled Wednesday.
Common Pleas Court Judge Shelley Robins New announced the session after a closed-door meeting with officials of the District Attorney's Office and defense lawyers.
New also imposed a gag order on both sides, saying she did not want additional publicity to force her to go outside Philadelphia to pick an impartial jury.
"This case is not to be tried in the press," New said. "Depending on what happens, we may be selecting a jury soon and we don't want to have to go to another county."
New said that if she denies the defense motion to bar a retrial, she wants to start picking a jury as soon as possible.
The hearing became necessary when New declared a mistrial Tuesday after four days of testimony because two prosecution witnesses unexpectedly identified defendant Francis Kirchner.
Kirchner, 30, of Fishtown, allegedly delivered the fatal kick to the head of victim David W. Sale Jr., 22, of Lansdale, during the booze-fueled melee on July 25, 2009, in a parking lot.
Defense lawyers moved for a mistrial, saying they had not been told before trial that Sale's friends Daniel Curran and Ryan Tulino would identify Kirchner before the jury.
New said Tulino's surprise identification Monday violated a court rule requiring a prosecutor to disclose incriminating evidence - including identification testimony - to the defense before trial.
New said Tulino's "blurt-out" also made it impossible for Assistant District Attorney Richard Sax to counter claims of prosecutorial misconduct because he would have to testify and attack his own witness' credibility.
A mistrial usually results in a retrial on the same charges. But in this case, Kirchner attorney Jack McMahon has moved to bar a retrial under the constitutional provision against double jeopardy when prosecutorial misconduct is involved.
Sax, interviewed after the mistrial ruling, said he did not mislead defense lawyers.
New said Curran and Tulino would likely be asked to testify about their unexpected courtroom identifications.
Also likely to be questioned are homicide detectives who interviewed witnesses after the brawl in which Sale died.
Kirchner; Charles Bowers, 37, of Oxford Circle; and James Groves, 48, of Kensington, were in a group bused from Moe's Tavern in Fishtown to the game between the Phillies and St. Louis Cardinals.
In later innings, some of those from the Fishtown pub and a bachelor party that included Sale got into a fight after drinks were spilled at McFadden's, a sports bar attached to Citizens Bank Park.
Lawyers for Bowers and Groves have acknowledged their clients hit Sale during the fight. McMahon has said Kirchner never touched Sale and was fighting two other men elsewhere in the South Philadelphia parking lot.
Only Kirchner is charged with first-degree murder and faces life in prison without parole if found guilty. For that reason, he is ineligible for bail.
Bowers and Groves are charged with third-degree murder, which carries 20 to 40 years in prison, and both are free on bail.