GOLDEN — A mistrial nearly derailed the trial today of Cheri Kostur, who is accused of allowing the baby she delivered in a toilet to drown.
Kostur, 29, is charged with child abuse resulting in death. Prosecutors contend Kostur delivered a daughter, Kara, at her Lakewood home shortly after 4 a.m. on Jan. 21, 2007.
The trial will continue Wednesday with an 11-member jury after two jurors were excused after it was learned they had talked about the case in violation of the court’s order to avoid such discussions.
Kara was “born alive, and she drowned,” prosecutor Natalie Judson told a jury in opening statements. Judson said Kostur cut the umbilical cord with a paid of child-sized scissors, heard the baby cry and waited two minutes before she pulled Kara’s body out of the toilet.
Then she put Kara’s body in a yellow wastebasket where it was found along with the trash, Judson said.
Kostur’s mother confronted her angrily “about losing another grandchild,” Judson said, with Kostur responding: “Good. Now I can go hang out with my friends.”
Three other children born to Kostur are being cared for by paternal relatives.
The court recessed for lunch, with the defense scheduled to make opening statements in the afternoon.
Ten of the jurors ate together in the courts cafeteria. During lunch, two jurors talked about reading about the case in the newspaper or seeing it on TV.
When they returned to the jury room, two more jurors joined them in notifying the court they remembered some pretrial publicity.
District Court Judge Lily Oeffler summoned the four for questioning.
One was excused after she said she recalled seeing Kostur’s story and photo on TV, and told her husband the woman belonged in jail.
Another juror remembered a news article, and was excused after other jurors said his comments were more extensive in the jury room than he admitted in court.
The other two had vague memories of news stories.
The prosecution and judge’s staff researched whether there had been news stories, and came up empty.
It was agreed Kostur’s case probably was being confused with that of Erin Pendleton. She was sentenced in February to 40 years in prison for the 2004 death of the baby boy she delivered in the bathroom of a Cherry Creek sports bar.
With two excused jurors, the prosecution said it didn’t object to proceeding with an 11-member jury.
One of Kostur’s attorneys, Dan Katzcq, objected to the idea, saying his client would be giving up her right to a trial by a jury of 12.
However, Kostur — after conferring with her attorneys — insisted on proceeding rather than taking Oeffler’s offer to declare a mistrial.
Jurors were allowed to head home after being read instructions that stated there are other metro-area cases of babies born in toilets or found in trash receptacles, with some cases receiving intense media attention.
“There has been no publicity in this case,” the instructions said.
Oeffler admonished the jurors to not read about the case in newspapers or on the Internet, or watch them on TV or hear them on the radio.
When the rollercoaster of legal issues slowed after 5 p.m., Katz asked Oeffler if he finally would be giving his opening statements this morning.
“Let’s hope,” Oeffler replied.
Ann Schrader: 303-278-3217 or aschrader@denverpost.com.
