Prosecutor seeks retrial in fatal crash

Timothy Johnson, 42, an Oak Harbor area volunteer firefighter, was involved in a July, 16, 2010, fatal crash while responding to a call.

PORT CLINTON -- Prosecutors are seeking a retrial for an Oak Harbor area volunteer firefighter who was involved in a fatal crash while speeding to the fire department.

Timothy Johnson, 42, was on trial in Ottawa County Common Pleas Court last month on charges of aggravated vehicular homicide and aggravated vehicular assault when visiting Judge Paul Moon declared a mistrial because of prosecutorial misconduct.

Mr. Johnson, who is free on bond, was responding to a mutual aid call July 16, 2010, when his pickup smashed into the rear of a car driven by Olivia Duty, 21, of Woodville on State Rt. 19 south of Oak Harbor. Ms. Duty was seriously injured, and her passenger, Ian Huffman, 24, of Elmore was killed in the crash.

On the second day of Mr. Johnson's trial, defense attorney Dean Henry suddenly asked the court to declare a mistrial after Richard Ruth, an accident reconstructionist who had been sworn in as an expert witness, began testifying about time and distance tests he performed at the crash site -- information that had not been shared with the defense prior to trial as required.

Judge Moon agreed with Mr. Henry, saying he did not recall hearing about such testing when Mr. Ruth's testimony was discussed at a hearing on the admissibility of scientific evidence that the court held in April.

In a memorandum filed in support of his intent to retry the case, Special Prosecutor Ken Egbert, Jr., said Mr. Ruth had testified at trial about interpreting driver behavior related to information from the crash scene. Mr. Ruth further testified about calculations he had made regarding Ms. Duty's car, a Mazda Protege.

"During this inquiry about driver behavior, the prosecutor did not realize the Mazda calculations had not been a part of the pretrial admissibility hearing and that Mr. Ruth had just made them," Mr. Egbert wrote in the memo.

Mr. Henry was on vacation and could not be reached for comment Wednesday. After Judge Moon declared the mistrial, Mr. Henry said he planned to oppose any attempt to retry his client on the grounds of double jeopardy.

Mr. Egbert, in his filing with the court, said double jeopardy "only bars retrial if the conduct giving rise to the motion for a mistrial is intentionally calculated to provoke a mistrial." He said further that Mr. Ruth's testimony was "not the product of a calculated intent to cause a mistrial."