The Supreme Court of Ohio ruled today that the retrial and conviction of a Columbus woman on charges of murder and other offenses violated the woman’s  right against double jeopardy because a Clark County judge had improperly declared a mistrial in her previous trial on the same charges.

In a 4-3 opinion authored by Chief Justice Maureen O’Connor, the court affirmed a decision of the Second District Court of Appeals that vacated the convictions of Toneisha Gunnell for her role in a 2005 incident that resulted in the death of John Deselem. Deselem was struck and killed by a car in which Gunnell was a passenger while Gunnell and three other women were fleeing from security guards after shoplifting clothing from a Springfield mall.

Gunnell and her co-defendants were tried in the Clark County Court of Common Pleas and found guilty of murder, aggravated robbery, involuntary manslaughter and theft. Those convictions were overturned on appeal based on errors in the trial court’s jury selection process.  In a second trial, after the state and the defendants had completed their arguments and the jury had retired to deliberate, the judge declared a mistrial based on the fact that one of the jurors had used a home computer to conduct Internet research on two legal terms that the trial judge did not define for the jurors.  Following the mistrial, Gunnell was tried for a third time, found guilty on all charges, and sentenced to prison.

Gunnell appealed her convictions, arguing that the judge acted without a sufficient legal basis in declaring a mistrial during the second trial, and as a result, her constitutional right against double jeopardy was violated when the state tried her for a third time on the same charges. The Second District agreed and vacated Gunnell’s convictions on grounds of double jeopardy. The state sought and was granted Supreme Court review of the Second District’s ruling.

Writing for the majority in today’s decision, Chief Justice O’Connor observed that trial judges have wide discretion to determine when an error or act of misconduct during a trial is so serious that it requires the court to declare a mistrial. She noted, however, that the U.S. Supreme Court has held that when the state moves for a mistrial in a criminal case and the defendant opposes that motion, as occurred in this case, the court may grant a mistrial only if the state clearly demonstrates that there is a “manifest necessity” for a mistrial.

In Gunnell’s case, the Chief Justice observed, there was no showing of a manifest necessity for the mistrial because the trial judge concluded, based on speculation, that the juror in question – Juror No. 6 – was prejudiced because she had conducted Internet research on legal terms that were important to the jury’s consideration of whether Gunnell was guilty.  The Chief Justice wrote, “Had the judge actually inquired into the salient issue of prejudice with the juror, he may well have acted within his discretion.  But we cannot condone the notion that a judge acts rationally, reasonably, or deliberately in declaring a mistrial, on retrial, in a difficult criminal case without any meaningful inquiry into the issue of juror bias. It is neither lawful nor conscionable to predicate a mistrial on speculation alone. 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.”

The basis for the trial court’s declaration of a mistrial was Juror No. 6’s actions in conducting Internet research on two legal terms at issue in the case despite the court’s warning that the jury must rely exclusively on the legal definitions and other instructions they had received from the court. After discovering the juror’s misconduct, the trial  judge convened a brief hearing at which he questioned the offending juror in the presence of the parties and their attorneys about her reasons for seeking legal information outside of the court’s instructions, and determined that she had not shared the results of her improper research with any of the other jurors. The judge did not engage in any discussion with the juror about possible bias arising from the outside information she had obtained, and asked no questions to determine whether the juror believed she could disregard that information and reach a verdict based only on the law as it had been explained to her by the court.  

Chief Justice O’Connor noted that after sending the juror back to the jury room and asking counsel what action they recommended the court take to address the situation, the judge indicated his belief that if Juror No. 6 were called back before the court and questioned about potential bias “I’m sure she’s going to say all the right things because, again, I think she’s a nice person. And she’s going to want to be accommodating and pleasing, and I know or I’m certain she doesn’t want to be responsible for a mistrial. So she’s going to try to appease us and say what she needs to say; but, you know, I just -- I feel like that may be an exercise of futility.  I don’t know that I can be convinced that she’s going to be able to put this out of her mind.”  After a brief recess, the judge granted the state’s motion for a mistrial over the defendants’ objections, stating on the record his conclusions that the offending juror had been “irreparably tainted,” and that there was “no other option than to sustain the state’s motion.”

The Chief Justice wrote: “(A)lthough a trial judge’s determination of juror bias is entitled to great deference, it must be predicated on the judge’s proper discretion in hearing the case. Mere supposition, surmise, and possibility of prejudice are not sufficient. This distinction is a simple but critical one, and one that was overlooked by the trial judge in this case. Although a trial judge’s determination of juror bias sufficient to create the need to declare a mistrial is a matter of discretion, the record here reveals nothing of substance from which the judge made his determination.”

“The inquiry of Juror No. 6 was limited and ineffective. The questions did not unearth what bias, if any, the juror absorbed as a result of reading the forbidden material. ... And it certainly did not establish whether that bias, if any, could be cured by further instruction from the court.”

“We, of course, have no way of appraising Juror No. 6’s credibility. But nothing in the record establishes that she was so ‘nice’ that she would deny whatever bias she might have incurred in order to be ‘accommodating and pleasing,’ thereby violating her oath as a juror.  The transcript reveals that she was confused about terms for which the trial judge had refused to provide instruction and took it upon herself to educate herself about the terms − in violation of an unequivocal instruction to not do so. The limited information before us also suggests that she understood that it was wrong to do so and that she had not tainted the jury with the information. Although all agree that it was error for her to conduct outside research, it was also error for the judge to make no more than a limited inquiry of the juror − an inquiry that merely established the misconduct, not any prejudice from it. The judge disregarded the constitutional commands that the court, in deciding whether a manifest necessity exists to declare a mistrial, must act ‘rationally, responsibly, and deliberately.’ We cannot conclude that the trial court acted with deliberateness in this case.”

“(T)he record is devoid of any showing that the state shouldered its heavy burden of justifying the mistrial by showing a manifest necessity. ... In essence, the trial judge invited the state to move for mistrial based on his apparent conclusion that there was insurmountable juror bias. And he did so without inquiry of the juror about that bias, in the face of agreement of all defense counsel that inquiry of the juror and a strong curative instruction might suffice and despite our clear precedent that ‘[w]hen a trial court learns of possible improprieties that might affect the impartiality of a juror, the court has a duty to hold a hearing to determine whether any bias has been introduced into the jury room.’”

Chief Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Judith Ann Lanzinger and Yvette McGee Brown. 

Justice Lanzinger and Justice McGee Brown also entered concurring opinions.

Justice Lanzinger wrote separately to urge the court to revisit its 1990 holding in State v. Crago that the denial of a defendant’s motion to dismiss a criminal case on double jeopardy grounds is not a “final” order subject to immediate appeal. She noted that the effect of Crago in cases like this one is to force a criminal defendant like Gunnell to undergo a completely new trial, only to have the result of that new trial vacated on appeal because the defendant’spretrialdouble jeopardy claim should have been granted, and therefore the new trial should never have taken place.

Justice Lanzinger also pointed out that while the judge in Gunnell’s second trial clearly stated that jurors were to consider only evidence presented at trial, “the instructions were more vague regarding whether jurors were forbidden to consult outside sources such as the Internet or new technology to assist them in applying the court’s instructions of law to their findings of fact.” Thus it was speculative that the juror willfully violated the court’s order in looking up a definition online.  She noted that “prevalent and expanding nature of new media presents trial courts with the challenge of instructing jurors regarding technology that has become an everyday part of their lives.”

Justice McGee Brown concurred with Justice Lanzinger’s suggestion that the court reconsider its continuing reliance on State v. Crago as binding precedent in double jeopardy cases.

Justice Terrence O’Donnell entered a dissent that was joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp, in which he disagreed with the majority’s finding that the trial judge in Gunnell’s second trial erred in declaring a mistrial based on the misconduct of Juror No. 6.

Justice O’Donnell wrote: “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. Moreover, in a separate proceeding, the United States District Court denied writs of habeas corpus seeking to bar retrial on double jeopardy grounds, finding that the mistrial declaration ‘was not an unreasonable application’ of United States Supreme Court law, and that determination was affirmed by the Sixth Circuit Court of Appeals.” 

“This court ought not substitute its judgment for that of the trial court, as upheld by the federal district court and the federal circuit court of appeals. 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 judgment and remand the matter for retrial.”

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2010-1636.  State v. Gunnell, Slip Opinion No. 2012-Ohio-3236.
Clark App. No. 09-CA-0013, 2010-Ohio-4415.  Judgment affirmed.
O’Connor, C.J., and Pfeifer, Lanzinger, and McGee Brown, JJ., concur.
Lundberg Stratton, O’Donnell, and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-3236.pdf

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