OHIO SUPREME COURT THROWS OUT DAYTON MURDER CONVICTION – MISTRIAL – DOUBLE JEOPARDY

OHIO SUPREME COURT THROWS OUT DAYTON MURDER CONVICTION
One of four shoplifters in 2005 mall death set free after double jeopardy ruling.Prosecutor says decision doesn’t mean defendants were innocent.
Y. Latta – July 19, 2012
One of four Columbus women convicted of killing a man while they fled after shoplifting from Upper Valley Mall in a hit-and-run accident seven years ago was released from prison Thursday evening.
A divided Ohio Supreme Court ruled Thursday that Clark County Common Pleas Judge Douglas Rastatter erred when he declared a mistrial in Toneisha Gunnell’s 2007 trial. That error violated Gunnell’s rights against double jeopardy — a rule that forbids someone being tried twice on the same charge — when she was convicted in 2009.
“I just feel blessed, blessed and thankful… and ready to go home,” said Gunnell. “God is good.”
When asked what she is looking forward to, she said: “Going home to be with my babies.”
Her children, 8- and 9-years-old, did not yet know that their mom was coming home.
The 4-3 ruling affirmed the Second District Court of Appeals’ 2010 decision to overturn her conviction. Her attorney, James Griffin, said he and Gunnell’s family are pleased with the ruling.
“I was relieved to finally get it. After seven and a half years, I can close this case, and I hope that Toneisha has learned her lesson and is able to lead a better life,” Griffin said.
Co-defendant Alicia McAlmont appealed her sentence on the same grounds. Griffin expects justices to overturn McAlmont’s conviction and for her to be released from prison, too.
Gunnell and McAlmont were sentenced to 18 years to life in prison on several charges, including robbery and murder, for their role in the June 2005 death of John Deselem, 49, in the parking lot of the mall.
The two women, along with Mahoghany Patterson and Renada Manns, stole a car in Columbus on June 7, 2005, and took $3,500 worth of clothing from Macy’s. With story security in pursuit, the four sped away, hitting and killing Deselem as he either stepped off the curb or attempted to stop them.
Clark County Prosecutor Andy Wilson said he agrees with the three dissenting justices, but respected the court’s decision. He also noted that a federal district court, a federal appellate court, and three Ohio Supreme Court justices agreed that double jeopardy did not bar retrial of the women.
“I know that everyone involved in the case did their best to reach a decision that protected the rights of the state, the victim’s family and the defendants,” Wilson said. “ … Today’s decision bars the State of Ohio from retrying the case again. Today’s decision does not equate to the innocence of these defendants.”
The women argued in court that Deselem’s death was an accident, but two separate juries found them guilty of murder.
The court of appeals overturned the women’s November 2005 conviction and ordered a new trial, saying a prospective black juror was improperly dismissed.
A second trial in 2007 ended when Rastatter declared a mistrial after a juror researched two legal terms online after deliberations had started.
Later, Gunnell and McAlmont were found guilty and sentenced to prison in a third trial in 2009.
In 2010, Patterson and Manns took a plea deal and were sentenced to 10 and 11½ years, respectively, with credit for time served. They forfeited their appeal rights as part of their guilty pleas.
But Chief Justice Maureen O’Connor, Paul E. Pfeifer, Judith Ann Lanzinger and Yvette McGree Brown ruled Thursday that in the second trial Rastatter improperly declared a mistrial in the case based on a juror’s actions.
O’Connor wrote that Rastatter speculated the juror who researched legal terms online was biased without “meaningful inquiry.”
“A mistrial upon the judge’s mere speculation of prejudice is not an act of ‘the greatest caution.’ It is a travesty. And that is exactly what is before us. The court of appeals was correct in holding that the mistrial was in error and that the Constitution demands reversal of these convictions,” O’Connor wrote.
Justices Terrence O’Donnell, Evelyn Lundberg Stratton and Robert R. Cupp disagreed and said Gunnell should have a new trial.
“In my view, double jeopardy principles do not preclude retrial in this case. The trial court here, in the exercise of its discretion, found that a manifest necessity existed to declare a mistrial,” O’Donnell wrote in court records.
O’Donnell continued: “ … In my view, the intermediate state appellate court misapplied the manifest necessity standard and substituted its judgment for that of the trial court, and I would reverse its judgement and remand the matter for retrial.”
Barbara Fitzwater, who had dated Deselem for seven years and was shopping with him the day of the incident, said she sent Deselem to the car to get her purse when he was killed.
Fitzwater said Rastatter and the local court system did nothing wrong.
“I think it was perfectly justified what these girls were sentenced to,” Fitzwater said.
She added that the the driver, Manns, was to blame for Deselem’s death and should remain behind bars.
“I felt the driver was the ring leader. Yes, the girls stole, but they were at her beckon call after they ran John down. I have a hard time with that because I felt the driver was to blame for killing him. I felt sorry for those girls. I really felt sorry for them.”
While in prison Gunnell has matured, obtained a high school diploma and tutored inmates, Griffin said.
“We’re grateful that we got the decision from the Supreme Court. We look forward to everybody being able to put this behind them and get on with their lives,” Griffin said.
He said Gunnell often prays for Deselem’s family.
“She’s always felt bad about what happened,” Griffin said.

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