The defense attorney for a man convicted of third-degree murder following a second trial argued Wednesday that the conviction should be thrown out because the prosecution either purposely caused a mistrial or was reckless in its preparation of the case.

Carlos Harris, 28, of Arlington, was found guilty following his second bench trial before Allegheny County Common Pleas Judge Thomas E. Flaherty in 2018.

Police said Harris killed Daren Scott, 25, of Munhall on Aug. 24, 2015, as Scott drove in Homestead.

The conviction came after Harris’ first trial in the case ended in a mistrial — at the request of then-defense attorney Owen Seman — when Deputy District Attorney Chris Avetta produced hundreds of pages of phone records from Harris’ phone that had never previously been turned over to the defense.

During that first trial, additional evidence was also turned over that had never been tested, including a gunshot residue kit obtained from a witness; bullet fragments found in the victim’s vehicle; and DNA taken from a towel and T-shirt found wrapped around the alleged murder weapon.

After the mistrial, Seman filed a motion to ban a retrial arguing that it was a violation of double jeopardy rules that prohibit a person from being prosecuted twice for the same crime.

Flaherty denied the defense motion, and following the retrial found Harris guilty.

He ordered him to serve 27 to 34 years in prison.

However, Harris appealed, arguing that Avetta purposely provoked the mistrial to have additional time to get those evidentiary items tested and use the results to strengthen his case.

In 2020, the state Superior Court remanded the case to Flaherty for an evidentiary hearing on the matter.

On Wednesday, Avetta, who supervises the DA’s office’s operations in Pittsburgh City Court and at area magistrate court offices, was the only witness called to testify.

Flaherty said he would take the issue under advisement and rule at a later date.

During the hearing, Avetta said that he prepared for the Harris trial similarly to other cases and met with lead investigators prior to trial, asking them if there was any other additional evidence.

“I was informed everything we had was in the homicide binder,” Avetta said. “They said that was all they had.”

But in the course of trial, Avetta learned from detectives about the evidence that had gone untested, as well as the records from Harris’ phone.

Avetta said that as soon as he obtained the test results and phone contents, he turned them over to the defense, and that nothing in them negated Harris’ guilt.

But Harris’ current defense attorney, Corrie Woods, focused on the impact the DNA results made during the second trial.

Avetta agreed that they corroborated other evidence against Harris.

“It didn’t further the case any,” Avetta said. “It wasn’t why I asked for it. I was ready to end the case. I was ready to rest. I didn’t understand why he asked for a mistrial.

“I had everything I needed in terms of getting this case to a verdict.”

Avetta denied the allegation that he tried to cause a mistrial.

But he also admitted, “I think I could have done some things better.”

“Mr. Avetta, we agree all these rules exist to ensure the defendant has a fair trial?” Woods asked.

“I agree with that.”

Woods argued to the court that double jeopardy can apply whether the prosecution’s conduct was intentional or reckless.

“Reckless conduct subsumes conscious conduct,” he said. “A defendant has a right to a fair trial — but a right to a fair first trial.”

When that first fair trial is lost, he continued, “the Constitution is offended.”

Because Avetta ended up with additional time after the mistrial, Woods argued, he had more time to gather additional evidence.

“It’s quite easy to see the effect, if not the intent, here.”

But Deputy District Attorney Ronald M. Wabby Jr. said that a retrial was only precluded if Avetta acted consciously.

“We have none of that,” Wabby said. “When he had this information, he turned it over.

“It doesn’t demonstrate intentionality. It doesn’t demonstrate recklessness,” Wabby said.

Further, he argued, investigation doesn’t stop when a case is still pending a retrial.

He called Woods’ argument that Avetta purposely caused a mistrial “patently absurd.”

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