Try, Try Again

Not So Fast

By A.J. Wagner

Two weeks ago, Toneisha Gunnell was released from prison after six years of captivity for the murder of a Good Samaritan. John Deselem attempted to stop a getaway car after witnessing a shoplifting incident at a Macy’s in Springfield. Gunnell, one of the shoplifters, had jumped into the car after stealing several garments. Renada Manns was driving the car and accelerated as Deselem tried to wave the car to a stop as he stood in its path.  Manns ran down Deselem and he died at the scene.

When a person participates in a crime with others, they participate in the entire crime and become subject to the consequences, not just for their individual part. As a result, Gunnell was charged with murder even though she did not run the victim down. She was found guilty at trial, but a jury selection issue caused the Court of Appeals to reverse her conviction and she had to be retried.

After the second trial, a juror, while deciding the case, did some research at home and brought back to the court a definition of “involuntary manslaughter” not authorized by the court. The judge, believing she would not be able to put aside her research and stick to the court’s definition, declared a mistrial, which means that he called off the trial. A third trial was held and Gunnell was convicted and sent to prison for life.

Gunnell’s attorney believed that her right not to be tried twice for the same crime was violated and issued an appeal.

The Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This provision in the Constitution prevents someone from being retried for the same crime after they have been found not guilty or guilty.

It can also, in a limited number of cases, prevent a second trial after a mistrial has been declared by the judge. In Gunnell’s case, the judge believed a juror was tainted and could not be rehabilitated. The judge said to the lawyers at the time of the trial:

“So I guess my point is: We can bring her (the juror) in, and we can all ask her and try to rehabilitate her; and 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 try 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.”

So the judge decided not to try to “rehabilitate” the juror, which is try to convince her to ignore the research she had done and follow only the legal instructions and definitions given by the court. Instead, the judge determined the juror had become biased and a mistrial was the only option.

The Second District Court of Appeals weighed in on the case and determined that the judge had erred. When a judge has wrongly declared a mistrial the defendant cannot be retried. So the case went to the Ohio Supreme Court for review.

The Supreme Court declared: “A trial judge’s determination of possible juror bias should be given great deference only upon the appellate court’s satisfaction that the trial judge exercised sound discretion in determining whether juror bias existed and whether it could be cured.

“The decision to declare a mistrial based on juror misconduct is a matter within the sound discretion of the trial court and is entitled to great, but not unlimited, deference by a reviewing court. In this case, the trial court did not soundly exercise that discretion by inquiring of the juror to ascertain the scope of the prejudice, if any, to the appellee before determining that the juror could not be rehabilitated and that a mistrial was necessary. Because the record here cannot establish that a manifest necessity existed to declare a mistrial, double jeopardy attaches, and the Constitution commands that no further prosecution of appellee may occur. Accordingly, the judgment of the court of appeals is affirmed to the extent that it held that the Double Jeopardy clause barred retrial.”

In other words, the court could not have known if the juror could be rehabilitated if he didn’t try to do so. He should not have assumed so. The mistrial having been made improperly there can be no retrial and Ms. Gunnell is free to go.

State v. Gunnell, 2012-Ohio-3236


Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.


A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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