OAKLAND (CBS SF) — Stating that a prosecutor’s comment might improperly influence jurors, a judge declared a mistrial Tuesday in the long-awaited case of a former Fremont elementary school teacher who’s accused of molesting two young students nearly 17 years ago.

Frank Montenegro, who’s now 53, was charged in 2001 with molesting two students, ages 10 and 11, multiple times during summer school sessions in his classroom in 2000 while he was an elementary school teacher with the Fremont Unified School District.

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But Montenegro, who had worked for the district since 1988, fled the Bay Area for 14 years until FBI fugitive task force members found him and arrested him in the Los Angeles area on Aug. 15, 2015.

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In her opening statement Tuesday, prosecutor Amanda Chavez told jurors that when FBI agents handcuffed Montenegro “he refused to say one word.”

In a hearing outside the presence of jurors after Chavez completed her opening statement, defense attorney Todd Bequette asked for a mistrial, saying that court rulings have established that prosecutors aren’t allowed to
comment to jurors about a defendant exercising his right against self-incrimination.

Bequette said he thinks Chavez’s comment “was not an intentional error on her part” and “was not intended to mislead the jury” but he believes it irreparably harmed Montenegro’s right to a fair trial.

Chavez admitted “it was an unwise phrase” but said she didn’t mean to comment on Montenegro’s privilege against self-incrimination but instead was referring to the fact that he wouldn’t even give his name or give any
other booking information to authorities when he was arrested.

Alameda County Superior Court Judge Kevin Murphy said, “It’s a close call” and he agrees that Chavez didn’t intend to mislead the jury but he said he would declare a mistrial “out of an abundance of caution” because
Chavez’s remark “could create an inference or an impression.”

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Murphy then brought jurors back into his courtroom and dismissed them, saying, “There’s been a development in this case and we no longer need your services.”

Jury selection in the case took about four days. Montenegro, who’s being held without bail, will return to court on Wednesday when jury selection will begin for a new trial.

Montenegro is charged with 13 felony counts, including aggravated sexual assault of a child, committing lewd acts upon a child and sodomy on a child.

Chavez said in her opening statement that one of the alleged victims in the case “was terrified for his family because every time he (Montenegro) sodomized him he told him, ‘Don’t say anything about this or you’ll never see your family again.'”

Chavez said that victim “felt dirty, angry and depressed” and the other alleged victim “shut down and withdrew from people.”

Chavez said Montenegro “manipulated everyone” and told jurors that other witnesses would corroborate the testimony of the two alleged victims.

Murphy declared the mistrial before Bequette presented his opening statement.

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