Order denying McClure double jeopardy retrial vacated

The Pennsylvania Superior Court has vacated a December order denying a request to stop a retrial for a Centre County woman convicted in 2014.

Jalene McClure, 43, was convicted of assault and child endangerment after a September 2014 jury trial and sentenced to 10 to 20 years. That sentence was vacated in August 2016 and a new trial was ordered.

Within days of sentencing, McClure’s attorney, Bernard Cantorna, filed an open records request for phone records that showed text messages between former Centre County Judge Bradley Lunsford and members of the District Attorney’s Office, some who were suggested to have made ex parte communications during trial.

According to the Superior Court opinion authored by Judge Carl Solano, McClure issued two subpoenas to Lunsford seeking documents and testimony from him. Motions to quash these subpoenas were denied in November and December 2016. A further Dec. 22 order denied a motion filed by McClure to preclude a retrial based on double jeopardy grounds.

In her motion to preclude retrial, McClure sought evidence to establish judicial and prosecutorial misconduct intended to deprive her of a fair trial, the order stated. The motion was denied by the trial court because she had failed to prove the double jeopardy claim.

However, the opinion said, she had already filed subpoenas to Lunsford seeking evidence she said would help prove her claim. The court order stated that should counsel “be successful in securing additional factual information ... we will be willing to readdress ( McClure’s double jeopardy) motion prior to or following the trial.”

This motion was denied in December while a November appeal by Lunsford was still pending, the opinion said, stating that the court did not have the jurisdiction to deny the double jeopardy motion while an appeal seeking to obtain evidence was pending, noting that the appeal was relevant to the motion.

“Because Lunsford’s pending appeal deprived the trial court of jurisdiction to enter the ... order denying McClure’s motion to preclude retrial, we vacate the trial court’s Dec. 22, 2016, order,” the opinion said

The case is remanded for “further proceedings consistent with this opinion.” Neither District Attorney Stacy Parks Miller or Cantorna could be reached for comment.

Clinton County Senior Judge J. Michael Williamson deemed in December that, while there was texting between Lunsford and the Centre County District Attorney’s Office during the trial, it’s unlikely that the texting affected the trial. An attempt to secure bail for McClure was denied in March.

This story was originally published October 20, 2017 at 5:54 PM with the headline "Order denying McClure double jeopardy retrial vacated."