TRUMBULL COUNTY Judge declares mistrial in DUI

The prosecutor said he plans to try the case again.
By PEGGY SINKOVICH
VINDICATOR TRUMBULL STAFF
WARREN -- A judge in Trumbull County Common Pleas Court declared a mistrial in a nearly 4-year-old case of driving under the influence after a prosecution witness was seen talking to a juror.
Judge John Stuard dismissed the jurors in David Flasck's DUI trial Tuesday afternoon after one juror acknowledged talking to Paul Monroe, a Howland Township police officer, during a break in the trial.
Flasck's trial started Monday.
Atty. Roger Bauer, who represents Flasck, 47, of Youngstown, said he asked for the mistrial because jurors are not to talk to anyone involved in the case while the trial is taking place.
"This was a prosecution witness, and he shouldn't be saying anything to a juror," Bauer said.
Bauer noted that he saw Monroe talking to the juror when he walked out of the judge's chambers.
'Innocent error'
Ken Bailey, an assistant county prosecutor, said he understands why the judge ruled a mistrial but said Monroe "did not do anything deliberate."
"The juror went up to Paul and was just talking about his military experience," Bailey said. "It was a quick conversation -- an innocent error."
A message left at the Howland Township Police Department for Monroe was not returned.
Bailey noted that he plans to try the case again, but Bauer says he thinks the charges should be dropped.
Bauer said that he thinks it may be unconstitutional to try the case again because Flasck has a constitutional right not to be tried twice on the same crime.
"This was a prosecution witness that caused the mistrial, and I don't believe they can try it again," Bauer said.
Bailey said Flasck was arrested in Howland on the charge Oct. 14, 1998.
Other convictions
Court officials said Flasck has three DUI convictions.
Flasck's case took several years to get to trial because, in 1999, Bauer asked Judge Stuard to prohibit prosecutors from informing the jury of Flasck's previous DUI charges.
Bauer argued that telling the jury about the convictions would be a violation of Flasck's constitutional right to a fair trial.
Bauer added that normally jurors are not told about a defendant's convictions unless the defendant testifies during trial.
Judge Stuard agreed with Bauer, and the case was put on hold while prosecutors appealed the judge's decision.
The 11th District Court of Appeals upheld Judge Stuard's ruling, but last year the Ohio Supreme Court overruled the decision, sending the case back to Trumbull County.
sinkovich@vindy.com