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PORT CLINTON -- The jury trial of an Oak Harbor firefighter involved in a fatal crash while speeding to the fire station came to an abrupt end Tuesday when Judge Paul Moon declared a mistrial because of misconduct by the prosecutor.
Timothy Johnson, 42, who went on trial Monday on charges of aggravated vehicular homicide and aggravated vehicular assault for the July 16, 2010, death of Ian Huffman, 24, of Elmore and injuries to Olivia Duty, 21, of Woodville was permitted to go home free on bond.
Prosecutors were given 15 days to decide whether to re-try Mr. Johnson after Judge Moon declared they should not have allowed Richard Ruth, an accident reconstructionist, to testify about time and distance tests he performed at the crash site without sharing that information in advance of the trial with Mr. Johnson's defense attorney.
"There's been prosecutorial misconduct in the fact that the prosecutor had Mr. Ruth go out there and develop additional information, develop additional evidence without providing defense the required report and then coming into court and testifying to that," said Judge Moon, a retired Ottawa County Common Pleas judge. "Both defense counsel and I were blindsided by that testimony. I'm declaring a mistrial without prejudice to the state. I don't think we can undo it."
Dean Henry, a Tiffin lawyer who represents Mr. Johnson, had asked the court to declare the mistrial, saying he should have had a report on the information presented by Mr. Ruth at least 21 days before the trial. He said the court had held a two-day hearing this year about the admissibility of scientific evidence in the case "and at that point in time Mr. Ruth had not conducted any of the information or investigation that he is speaking of today."
He said it would be "wrong and unfair" to try to tell the jury to disregard testimony about the time and distance the vehicles traveled before impact.
"The critical issue in this case -- the critical issue relating to recklessness -- is speed," Mr. Henry said. "There has already been widely varying testimony regarding the speed of this vehicle."
Prosecutors contend Mr. Johnson was traveling as fast as 98 mph just five seconds before smashing into the rear of Ms. Duty's car at the intersection of State Rt. 19 and Portage River South Rd. just south of Oak Harbor. He was responding to a mutual aid call for a ladder truck at a structure fire in the neighboring village of Clay Center.
"It's not only unfair to the court, it is completely unfair to Mr. Johnson, and I don't have the technical expertise or the savvy to undo that," Mr. Henry told the court. "There is no way we can guarantee those 12 people are not going back there during deliberations -- as close as this case is going to be -- and be able to make a decision based on the highly technical nature of this information without hearing what Mr. Ruth had to say."
Ken Egbert, Jr., a special prosecutor from the Ohio Attorney General's Office who was assigned to the case, countered that Mr. Ruth had not drawn any conclusions during his testimony.
The judge disagreed.
Relatives of Mr. Huffman and Ms. Duty looked shocked and saddened when the judge declared the mistrial. The victim's father, Toledo lawyer John Huffman, declined to comment.
Mr. Henry, for his part, thanked the court for the ruling but said he would oppose a retrial on the grounds of double jeopardy.
"You can bring a defendant to trial one time. He can be held in jeopardy once," Mr. Henry said afterward.
"If the state does something to create a situation where they can't finish a trial, that is, misconduct, it is my position he should not have to face jeopardy again."
Mr. Egbert declined to comment afterward other than to say that in the coming days prosecutors would be evaluating whether to re-try Mr. Johnson.
He also said he would ask Mr. Ruth to prepare a report on the test findings that led to the mistrial.
Mr. Henry asked the court to return Mr. Johnson "to his status as a free citizen," but Judge Moon opted to continue his bond until prosecutors indicate if they intend to re-try Mr. Johnson.
Contact Jennifer Feehan at: email@example.com or 419-724-6129.