Ohio Criminal Appeals Lawyer Blog

During closing arguments in a trial for conveying drugs of abuse into a detention facility, the assistant prosecutor committed prosecutorial misconduct by stating in front of the jury that there had been plea negotiations. Not only that, but the assistant prosecutor informed the jury about the contents of those plea negotiations - that the defense had suggested a possession charge. The trial judge declared a mistrial stating that the defendant was deprived of a fair trial. The judge also stated that the case was "dismissed." The court of appeals upheld the mistrial but because the trial judge did not expressly state that the case was "dismissed with prejudice," the court of appeals presumed it was a dismissal without prejudice leaving the door open for a possible retrial. Read the decision in State v. Hunter, 2012-Ohio-189, here.

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The Clark County Prosecutor's Office in Springfield, Ohio, took three shots at making a conviction stick against Toneisha Gunnell, and they struck out each time. Now Ms. Gunnell has been ordered discharged by the Court of Appeals of Clark County, Ohio, even though she, Mahogany Patterson, Alicia McAlmont and Renada Manns, were arguably responsible for the death of John Deselem because they ran him down with their getaway car while being chased by a Macy's Security Guard at the Upper Valley Mall in Springfield.

The Court of Appeals ruled that the Honorable Douglass M. Rastatter erred in Gunnell's second trial when he granted a mistrial at the request of the State without first making an adequate investigation of juror misconduct by one of the jurors. Gunnell made a motion to dismiss the indictment on double jeopardy grounds before her third trial and that motion was overruled by Judge Rastatter. The Court of Appeals determined that the third trial was barred by the Double Jeopardy Clause because the State already had its shot in trial number two and "[i]n cases where a mistrial has been declared without the defendant's request or consent, the defendant 'may not be retried unless there was a manifest necessity for the grant of the mistrial or the failure to grant the mistrial would have defeated the ends of justice." Gilliam v. Foster (4th Cir. 1996), 75 F.3d 331.

The Second District Court of Appeals wrote, "[d]isturbingly, [Judge Rastatter] abandoned [his] role as a neutral adjudicator and became an advocate fo the State's cause, seizing on the juror misconduct." Gunnell cannot be retried on these charges as you can read in the Court of Appeals decision here.