Jayme Schwenkmeyer, 24, has been in the Corrections Center of Northwest Ohio since her conviction in August.
NAPOLEON - Her first trial ended in a mistrial. Her second trial ended with convictions for involuntary manslaughter and child endangering.
Now, Jayme Schwenkmeyer is asking Henry County Common Pleas Judge Keith P. Muehlfeld for a third trial on charges stemming from the 2007 drug overdose death of her 13-month-old daughter.
In a motion filed late Monday - just a day before she was to be sentenced - Schwenkmeyer, 24, of Liberty Center, contends prosecutors failed to disclose to the defense a witness whose testimony was "clearly material and its absence erodes confidence in the verdict."
After a week-long trial in August, Schwenkmeyer was convicted on charges she had breached her parental duty to care for and protect her child, Kamryn Gerken, whose death was attributed to toxic amounts of the painkiller oxycodone and the anti-anxiety drug Xanax.
A co-defendant, David Knepley, 50, of Napoleon was to have gone on trial last week on the same charges, but his trial was continued until February after Henry County Prosecutor John Hanna informed Mr. Knepley's defense attorney that he had learned of new witnesses.
David Klucas, attorney for Schwenkmeyer, said in his motion for a new trial that one of those newly disclosed witnesses was interviewed by prosecutors in March, 2009, but never disclosed to Schwenkmeyer. The witness, he said, could have testified about statements Mr. Knepley, who lived with Schwenkmeyer and her daughter, made about taking care of Kamryn in the early morning hours before she died.
Mr. Klucas said the central question posed at Schwenkmeyer's trial was "in whose care was Kamryn" in the two to 10 hours before her death when it is believed the child ingested the drugs. He said testimony from this witness "would clearly contradict evidence presented by the State at trial that Mr. Knepley was at the home of Barron and Kathy Beard between 7 and 11 a.m. the morning of Kamryn's death."
He said this is the second time there has been an issue with the prosecution failing to disclose evidence. When Schwenkmeyer went on trial the first time last December, Judge Muehlfeld declared a mistrial because the state had failed to disclose statements Schwenkmeyer allegedly made to the Henry County coroner.
In his motion, Mr. Klucas also contends Schwenkmeyer deserves a new trial because of a comment Henry County Prosecutor John Hanna made during his closing arguments at her second trial, in which he told the jury he is a parent who has lost a child.
"A prosecutor may not share personal experiences or allude to matters not supported by admissible evidence," the motion states. "The comment by the prosecutor … invited the jury to compare the emotional evidence elicited at trial with a similarly emotional experience of his own. Regardless of his intention, the natural empathy resulting from this argument tainted the verdict."
Mr. Klucas subsequently asked the court to declare a mistrial, but Judge Muehlfeld denied that motion.
Mr. Hanna could not be reached for comment Tuesday.
Schwenkmeyer, who has been in the Corrections Center of Northwest Ohio near Stryker since her conviction, has asked the court to schedule a hearing on her motion for a new trial.
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