Kimball Perry

kperry@enquirer.com

When is a verdict a verdict?

The answer could determine if Tracie Hunter gets a new trial.

"There's not an easy answer," Mark Painter, a former Appeals Court and Hamilton County Municipal Court judge, said Wednesday.

Painter's comments came after Hunter sought a new trial following her Oct. 14 felony conviction. She filed Wednesday documents with sworn statements from two jurors who said they didn't want to convict the suspended Hamilton County Juvenile Court judge.

Two jurors, William Smith and Rakesha Holmes, signed sworn statements included in Wednesday's filings noting they now believe Hunter isn't guilty. Both Holmes and Smith admit they signed the jury form that indicated a guilty verdict against Hunter but now say that wasn't their verdict.

"I am not writing this with the intent of changing the decision unless that opportunity is granted by the court," Smith wrote in an Oct. 16 letter to Judge Norbert Nadel, who presided over Hunter's five-week criminal case.

In her filing, Hunter argued the verdict wasn't official because of timing. The sequence is key.

The jurors told Nadel Oct. 10 they had a verdict in one of the counts but couldn't reach a unanimous verdict on the other eight felonies alleged against Hunter. Nadel took from them the verdict form of the one count on which there was a verdict, looked at it and immediately sealed it.

Nadel then told jurors he didn't want to know what their verdict was -- because he was sending them back to deliberate on the eight other charges -- but asked each of the 12 if the verdict on the form was their verdict. Each answered it was.

"I understand and am not denying that on 10 October 2014, days prior to revealing the verdict, I repliedc 'yes' when questioned by the court. I'm fully aware that my signature is on the (guilty) verdict form," Smith wrote to Nadel.

The jurors went home and returned Oct. 14 after the Columbus Day three-day weekend. After two hours of deliberation, jurors said they were hopelessly deadlocked on the other eight counts. Nadel declared a mistrial on those eight counts and ordered read in open court the Oct. 10 verdict.

After the guilty verdict was announced, Hunter sought to have the jurors polled, to ask each of that was their verdict. Nadel refused, saying they'd been polled Oct. 10.

"Until the time when the verdict was read publicly by the clerk, the jurors were free to change their minds," Hunter's filing noted.

By that time, Hunter argued, two jurors had changed their mind and, if asked, would have said so.

"The normal course is for the verdict to be read in open court, then jurors polled," Painter noted. "The question for the court, and eventually for an appellate court, is whether the polling of the jury without the verdict being announced in open court, is sufficient."

After doing legal research on the issue Wednesday, Painter couldn't remember or find any cases with a similar issue. It could be the first case of its kind in Ohio.

"It could go either way. Neither outcome would be totally unreasonable," Painter said. " I am glad I am not still on the appellate court."

Special Prosecutor Merlyn Shiverdecker wouldn't comment on Hunter's Wednesday filing. He and Special Prosecutor R. Scott Croswell III have yet to announce if they will seek to retry Hunter on the eight counts in which a jury couldn't reach a verdict.

The controversial Juvenile Court judge was convicted of having an unlawful interest in a public contract. She was accused of using her authority as a judge to get information about her brother's firing. Steven Hunter was a Juvenile Court employee when he was fired for punching a teen inmate. Judge Hunter obtained from her brother's boss -- a subordinate of Judge Hunter -- information about the teen victim, including medical and mental information about the teen protected by federal privacy laws.

Steven Hunter later tried to give information to the lawyer representing him in the disciplinary process and she refused to take them, saying it would be "unethical" for her to do so.

Hunter faces up to 1 1/2 years in prison when she is sentenced Dec. 2.