Emmily Lucas died seven years ago Tuesday.

Her battered body was taken off life support after 10 comatose days at the Hospital for Sick Children. She was 2 years old.

On Monday, the jury was dismissed in the second mistrial in the case against Erika Mendieta, Emmily’s mother, who was charged with second-degree murder in the toddler’s beating death.

A prosecutor from the first trial — assistant Crown attorney Paul Alexander — distracted the jury and intimidated the defendant by making faces while sitting in the gallery as a spectator.

“I’ve been involved in the criminal justice system for 30 years, and I can’t say that I’ve heard of a similar circumstance,” said Attorney General Chris Bentley. “It’s just very, very unusual.”

Last week, the jury wrote a note to Justice Nola Garton stating they wanted a man removed from the gallery. “We find him very distracting, and he is making strange faces all the time. We feel very uncomfortable with him.”

They did not know at the time who Alexander is.

The defence counsel brought forth a motion for a mistrial, and Mendieta testified — in the jury’s absence —that Alexander was rolling his eyes, shifting awkwardly, and making faces during Crown Attorney Allison MacPherson’s cross-examination.

“His look intimidated me a lot,” Mendieta said. “It made me feel very uncomfortable.”

Mendieta said it made her nervous, and changed the way she answered questions. She said she didn’t know she had the ability to challenge his presence in court until the jury wrote the note.

Any actions Alexander made were hard to detect by people sitting in the gallery, although MacPherson routinely looked back at him as she cross-examined Mendieta.

Bentley wouldn’t comment on whether Alexander could be fired for causing the mistrial. Chief prosecutor John Ayre has launched an investigation.

“We’re trying to get this prosecution back on as quickly as possible,” Bentley said. “It’s a serious case and it’s important that we do that.”

Mendieta was charged with murder in 2005. Her first trial, last year, ended with a hung jury.

Experts say it’s unlikely Mendieta, 34, can reasonably expect a third trial to be fair.

“It’s subject to the law of diminishing returns,” said Alan Young, a law professor at Osgoode Hall. “Each successive trial has the potential to become less reliable.

“It’s very important in law to get it right the first time around,” he said, noting that the United Kingdom has a strict policy to cut it off after two trials, whereas Canada assess it on a case-by-case basis.

Frank Addario, former president of the Criminal Lawyers’ Association, said the repeated prosecution of an individual for the same offence can become an abuse of process.

“When the line is crossed depends on the length of time since the charge was laid, the conduct of the Crown, the nature of the charge and the effect on the defendant’s fair trial rights,” he said.

On Monday, Mendieta’s defence lawyers, Bob Richardson and Robin Parker, tabled a motion to allow Garton to rule on the case alone, based on evidence already heard.

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The unusual proposal would save the courts the cost of another jury trial, but seems difficult considering Garton already said Alexander’s behaviour affected Mendieta’s demeanor on the stand.

“This makes the assessment of Ms. Mendieta’s credibility somewhat problematic for the triers of fact,” Garton said in her ruling.

The Crown and Garton must agree on the motion. The matter will be decided Thursday.

“Given the nature of the evidence and the two mistrials — the second being caused by the behavior of a Crown attorney — you would think that the Crown should decide to just stay the charges rather than pursue another trial,” said Peter Rosenthal, a University of Toronto law professor.

Last week’s decision to declare a mistrial was covered by a publication ban until the jurors returned to court.

Mendieta wept in court after the decision was announced without the jury present last week.

“She’s devastated,” Parker said of her client, who remains charged with second-degree murder. “A mistrial is not what anyone wanted.”

Reached at his office Monday afternoon, Alexander refused comment.

“Unfortunately I’m not in a position to talk,” he said before hanging up.

The ruling brought an end to a trial overflowing with oddities, including a confession by Mendieta’s former boyfriend, Johnny Bermudez, that he accidentally killed Emmily.

Under the Canada Evidence Act, nothing Bermudez said as a witness can be used to prosecute him.

Bermudez claimed he wanted to make things right, but when he was asked if he would waive his rights, he refused. The Crown believes it was Mendieta who beat the toddler so badly she went into convulsions.

With files from Brendan Kennedy