The first day of Robert Ritchie’s third trial came to an unresolved halt Monday when the defense moved for a mistrial after being provided the transcript of the wrong witness that was used to impeach a Franklin police lieutenant on the stand.
Ritchie, 25, is charged with child endangering and involuntary manslaughter for allegedly not checking on Austin Cooper after the child was severely burned by his stepmother, Anna Ritchie.
A mistrial was declared last December when the jury was hung and again in March when Ritchie became ill in court as autopsy photos of 4-year-old Austin Cooper were shown.
Defense attorney Frank Schiavone III was vigorously cross examining Franklin Police Lt. Gerald Massey on Monday about differences in his testimony on the stand and what he said in at the second trial.
Specific questions concerned if the child’s burn injuries were visible to him and other officers when the first arrived at the Bolder Drive house on March 17, 2016.
MORE: Mistrial declared after dad in scalding case gets sick in court
The court asked for a break and during that break, it was discovered the court reporter accidently mislabeled the transcript, putting Massey’s name on it, when it was actually the testimony of another witness.
Schiavone III and Frank Schiavone IV asked for a mistrial.
Credit: DaytonDailyNews
Credit: DaytonDailyNews
Prosecutors declined to give an opinion until they had a chance to confer with others in the office.
Warren County Judge Robert Peeler said a mistrial is not warranted based on one witness.
“The way this has been presented now, it can’t be fixed,” Schiavone III said to the judge.
Peeler answered, “this is one witness.”
Schiavone III said he was a crucial witness because he verified testimony of others.
“I was cross examining him with a transcript that was incorrect, so our whole defense went away,” Schiavone III said.
The judge said it is his belief that the cross examination of one witness is “not going to make or break this.”
Peeler asked the jury if they could disregard the testimony, explaining the transcript mix-up as human error, and all raised their hands in acknowledgement that they could.
The judge has reserved final decision until Tuesday morning after hearing from the defense and the prosecution.
During opening statements, the prosecution said if Ritchie had opened the bedroom door and checked on his 4-year-old son on March 16, 2016, he could have survived the bathtub scalding injuries he suffered at the hands of his stepmother, prosecutors told the jury today.
Assistant Warren County Prosecutor Julie Kraft said Anna Ritchie drew a scalding hot bath for Austin and held him in that tub, burning the child because she was angry. Then she put socks on his legs that were bleeding and peeling and put the boy in his crib.
Anna Ritchie then communicated with her husband through text messages and in person when he returned to their Franklin home that she was “worried” about Austin’s injuries, Kraft said during opening statements. The assistant prosecutors said Anna Ritchie told her husband the boy’s legs were bleeding and peeling.
“With the info Robert Ritchie had, he did not open the door to check on his son,” Kraft told the jury. She added what Robert Ritchie did do was check the water temperature in the water heater and turn it down.
Later, when Anna Ritchie returned home from a trip to the store, the couple went to bed. Still no one had checked on the injured 4-year-old, Kraft said.
The next morning, Anna Ritchie left the house early. Then Robert Ritchie went into his son’s room, some 15 hours later, and “found his child deceased in his crib,” Kraft said.
But defense Schiavone III said Robert Ritchie is a “good man” who loved his son and had previously fought to have full custody.
The defense maintains Austin was dead when Anna Ritchie put him in the crib, before Robert came home.
“There is nothing Robert Ritchie could have done to save the child, based on Anna Ritchie’s testimony,” Schiavone III said. “The child was already in heaven.”
He said Robert Ritchie “married a murderer.”
After killing the child, Anna Ritchie began a “huge coverup, ” Schiavone III said, adding Robert Ritchie trusted what his wife told him. He noted Anna Ritchie put socks on the boy and covered him up to hide the injuries from her husband.
The defense attorney also told jurors there is no evidence of Austin’s time of death.
“The evidence is clear, if Robert Ritchie had opened that door, he would have seen his child that appeared to be sleeping.” Schiavone III told the jury.
But Franklin Sgt. Shannon Cotton testified he was the first to arrive at the house and saw burns on Austin’s legs just by looking over the crib. Massey also said today during live testimony that he saw injuries to the boy as emergency workers work lifting the boy’s stiff body.
If the trial continues, a subpoena has been issued for Anna Ritchie to possibly testify.
Anna Ritchie, Austin’s stepmother, is serving a sentence of 18 years to life in prison after pleading guilty to murder for the boy’s death on March 15, 2016, at the couple’s Franklin home.