New Mallo trial set for March

REED CITY — A trial date has been set for a former Evart resident whose first trial on criminal sexual conduct charges ended in a mistrial.

The second trial of Francis Brent Mallo is scheduled to begin on Monday, March 16, in Osceola County’s 49th Circuit Court.

Mallo, of Loudon, Tenn., formerly of Evart, is charged with three counts of first-degree criminal sexual conduct stemming from incidents that allegedly took place in the early 1990s in the Evart area. The victim in the case was 11 and 12 years old at the time of the assaults. During this time, Mallo was employed as a house parent at Pineview Home for children.

The first trial for Mallo began on Dec. 8. Although it was initially scheduled to last five days, the trial spanned seven days, including 18 hours of deliberations. Ultimately, the jury was unable to reach a unanimous verdict and Judge Scott Hill-Kennedy declared a mistrial. A defendant may be re-tried on charges if a verdict is not reached in a prior trial.

With the first time around taking nearly two full days to select a jury, the second trial is scheduled as an eight-day trial in anticipation of potentially needing extra time.

The witness list for Mallo’s first trial was extensive, though it was whittled down once the proceedings began. The victim in the case, her mother, a memory expert and some of Mallo’s friends and family took the stand during the trial. Mallo chose not testify.

Mallo will remain in the Osceola County Jail while awaiting his new trial. He was denied a personal recognizance bond at a hearing on Jan. 23

When Mallo was first charged, bail was denied, but after the mistrial his attorney, Lisa Kirsch Satawa, made a motion to grant her client bail. After hearing arguments from Kirsch Satawa and Osceola County Prosecutor Tyler Thompson, Hill-Kennedy set bond at $300,000 in the first case and $350,000 for a second case involving another victim.

At the time bail was granted, Kirsch Satawa maintained Mallo would likely not be able to post that amount because of limited financial resources.

At Mallo's most recent hearing, Kirsch Satawa argued Mallo should be granted a personal recognizance bond — which is a written promise without posting money, stating a defendant agrees to appear for all future court dates and not engage in illegal activities during that time.

Kirsch Satawa sought personal recognizance because of the lengthy amount of time Mallo has been incarcerated, citing his right to a speedy trial.

Mallo has been incarcerated for 431 days at this point and because this is significantly more than 180 days, Kirsch Satawa believed personal recognizance was in order.

However, only certain stretches of time can be figured in and counted toward the 180 days to measure if the court proceedings are working in a timely fashion. Various procedural and excusable delays can not be factored into the total.

Before Hill-Kennedy calculated the accurate amount of days and made a decision, both sides presented their view on granting Mallo personal recognizance.

Thompson argued against personal recognizance being granted because there was evidence offered during trial through testimony that Mallo had threatened a victim. Also because Mallo now resides out of Michigan, Thompson was concerned about Mallo fleeing and not showing up for his next court appearance.

However, Kirsch Satawa said there is no basis to believe Mallo would fail to appear.

“If the court recalls, Mr. Mallo voluntarily drove up here from Tennessee to be interviewed during investigation and also drove voluntarily to turn himself in,” she said.

If the court granted personal recognizance bond, Mallo would live in Grand Rapids with his daughter if ordered not to leave the state, or would waive extradition and make sure to make all court appearances if allowed to go back to Tennessee while awaiting trial, Kirsch Satawa said.

After calculations, Hill-Kennedy found that 195 could be attributed and counted in Mallo’s wait for an outcome in his case. While this exceeds the 180 days, Hill-Kennedy explained that courts have found this nominal and he would be denying personal recognizance based on testimony of prior threats, albeit 20 years ago.