The timing of the 8th Distict’s decision last week in State v. Johnson was interesting, to say the least.  The appeal in Johnson was primarily directed to the prosecutor’s statement in closing argument that “the evidence in this case is undisputed. There’s no other side of the story. There is Mr. Burton [the victim], who testified, and told you what happened.”  As most of us — but, as we’ll see shortly, not all of us — know, commenting on the defendant’s failure to testify is a no-no, and has been for many, many years.  The defendant argued that this entitled him to a mistrial, but the appellate court concluded that the trial judge’s curative instruction to disregard the comment had been sufficient.

Frankly, it’s not clear that a curative instruction was even necessary.  As this 8th District decision from 2004 points out, while a number of Federal courts have held that a reference to the state’s case being “uncontroverted,” “unrefuted,” or “undisputed” is deemed to be an inappropriate comment on the defendant’s exercise of his right against self-incimination, the Ohio courts have pretty much uniformly rejected this argument, holding that those remarks are merely a reference to the strength of the state’s case.

The reason that I found the timing of the Johnson decision interesting was because of the little drama that’s played out over at the Justice Center these past few weeks.  It began when, after two weeks in a capital murder trial, the second-chair prosecutor got up in closing argument and informed the jury that they’d never know why the defendant committed the crime: he could’ve taken the stand to tell them why, but had chosen not to. 

Oops. 

The judge declared a mistrial, and this past Wednesday had a hearing to determine whether to dismiss the case.  Although a mistrial doesn’t normally bar retrial — the defendant waives the double jeopardy argument by moving for the mistrial — an exception exists where the mistrial is necessitated by prosecutorial misconduct.

That exception’s a narrow one, though; as this 2003 8th District case explains, retrial is barred only when the prosecutor’s misconduct was intended to goad the defendant into seeking a mistrial.  That’s a tough standard to meet; the last time I could find it happening in Ohio was in a 1981 case out of Stark County, a DUI case where the prosecutor had spent a good portion of his closing argument telling the jury that if they wanted more drunk drivers on the road, they should acquit the defendant.

So I wasn’t terribly surprised when, at the hearing on Wednesday, the judge didn’t dismiss the case, concluding that the prosecutor’s error, despite its egregious nature, was merely bone-headed instead of intentional.  She did order the prosecutor’s office to pay a fine of $26,000, which she estimated was the cost of retrying the defendant.  I thought that was a nice touch.

The newspaper article reporting the hearing mentioned that the defendant intended to “appeal the judge’s decision to Federal court.”  Actually, the decision can’t be appealed at all; the law in Ohio is that a denial of a motion to dismiss for double jeopardy is not a final appealable order, and the defendant has to wait until after the trial to appeal it.  (That stems from a 1990 Ohio Supreme Court case which is discussed in this 2004 8th District case.)  And, of course, appeal would have to be to the state court, not the Federal court.  I assumed the reference in the article to Federal court was a mistake, and due to the fact that the local paper will often have legal cases covered by reporters who don’t know any more about the law than, well… prosecutors trying death penalty cases.

After further investigation on my part, though, I am able to quash the rumor that, at the retrial, the first-chair prosecutor will be wearing an “I’M WITH STUPID” t-shirt.