More than 150 text messages sent between a judge and an assistant district attorney during a criminal trial is not a sufficient basis to allow a defendant to block her retrial based on double-jeopardy grounds, a Pennsylvania judge has ruled.
Clinton County Senior Judge J. Michael Williamson, presiding over the criminal case Commonwealth v. McClure in the Centre County Court of Common Pleas, determined that because he was unable to view the texts and prosecutors testified the messages were largely administrative, the defendant’s double-jeopardy motion should be denied.
Defendant Jalene McClure, who was convicted in 2014 on assault and related charges for allegedly shaking a 5-year-old, had her sentence vacated by the state Superior Court in August. That court determined that the judge presiding over her case had made improper evidentiary rulings.
On remand to the trial court, McClure had pointed to the numerous text messages as evidence of alleged prosecutorial and judicial misconduct that she argued should trigger the double-jeopardy protections, but Williamson held that the defendant failed to establish that any misconduct occurred.
“We reach this conclusion reluctantly but with the understanding our decisions must be based upon facts, not conjecture or speculation,” Williamson said in his Dec. 28 ruling.
The ruling comes in a case that led to a controversial Right-to-Know request over the text messages that cast the county and local criminal justice system into turmoil, with several attorneys and county officials slinging accusations and filing lawsuits against each other.
In her attempt to block a retrial, McClure argued that the district attorneys had intentionally sought to prejudice her and deny her a fair trial.
Although Williamson said he found nothing prejudicial, he said he was “deeply disturbed by the incredible number of text communications between” now-retired Centre County Judge Bradley Lunsford and the DA’s office. According to Williamson, 152 text messages were sent between Lunsford and assistant district attorney Lindsay Foster during the four days McClure’s trial was ongoing.
Williamson said that the court hasn’t seen any evidence about the exact language of the text messages, and noted that devices used by Lunsford, Foster and District Attorney Stacy Parks Miller “are no longer in existence.” All of the phones, Williamson said, were “wiped clean, destroyed or otherwise made unavailable after the issue of texting between Lunsford and the District Attorney’s Office had been raised by defense counsel.”
Williamson further noted that Lunsford refused to testify, and McClure’s counsel had been unable to “secure the cooperation of the Judicial Conduct Board and other investigating agencies.”
“We are left, therefore, with only defendant’s suggestion that such conversations took place based upon the timing of the messaging,” Williamson said.
According to Williamson, Foster also testified that the texts were not about the trial, but instead some were about her social life and others about another assistant district attorney who was having health problems.
Based on the lack of evidence and testimony, Williamson said McClure failed to show Lunsford’s rulings were the result of improper communications, or that a retrial should be barred under double-jeopardy protections.
Parks Miller said McClure’s double-jeopardy motion was brought to delay the retrial.
“We work to make sure nothing happens that the defense can exploit, and in that case, clearly something occurred that they’ve gotten their hands on,” Parks Miller said. “But we look forward to retrying the case.”
McClure’s counsel, Bernard Cantorna, declined to comment for the story.
Max Mitchell can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow him on Twitter @MMitchellTLI.