YOUNGSTOWN — The defense and prosecution have filed briefs in the matter of whether Bennie Adams, 65, should get a new trial in his 2008 conviction in the killing of Gina Tenney.

Tenney was a 19-year-old Youngstown State University student who lived downstairs from Adams in an Ohio Avenue apartment building. She was killed in December 1985.

Judge Anthony Donofrio of Mahoning County Common Pleas Court will preside over a two-day hearing in June on the trial question. Mahoning County Common Pleas Court Judge Tim Franken, who died in 2019, presided over Adams’ trial.

During that trial, Franken ordered the prosecution and defense not to bring up that Adams’ was earlier convicted of rape, kidnapping and aggravated robbery.

Attorneys for Adams, however, say jurors learned of the earlier convictions before their work on the case was over.

The jury recommended the death penalty for Adams, and Franken imposed it. But the Ohio Supreme Court later overturned Adams’ death sentence, and former common pleas court Judge Lou D’Apolito sentenced Adams to 20 years to life in prison.

FEDERAL FILINGS

In federal filings, defense attorneys argued that jurors were biased against Adams during his 2008 trial by being aware that Adams had been convicted of the earlier kidnapping, rape and aggravated robbery.

U.S. District Court Judge James S. Gwin ruled that Adams should be granted a hearing — known as a Remmer hearing — to “decide whether knowledge of Adams’ prior conviction sufficiently biased the jurors.” The hearing is set for June 12 and 13 in Mahoning County Common Pleas Court.

The Gwin ruling cited an affidavit from a male juror in the 2008 trial.

The juror stated that shortly after the jury recommended that Adams get the death penalty for killing Tenney, another juror approached the male juror at lunch “and said, ‘if it made (the male juror) feel better, Bennie Adams was in prison for rape for 17 years.’

“After delivering the verdict, most jurors went to dinner together,” the ruling continued. The male juror “says that at dinner, a second juror approached (him) and said that she had been dying to tell (the male juror) that Bennie Adams had been in prison for rape for years.”

Based on Gwin’s ruling, a hearing was held March 16 before Judge Anthony Donofrio of Mahoning County Common Pleas Court in which the parties discussed whether the burden of proof during the June 12 and 13 hearing will fall on the state or on Adams. Donofrio ordered the parties to file briefs on the issue.

The Adams brief, filed by attorneys Kimberly Rigby and Renee Severyn of the Ohio Public Defender’s Office, argues that in the 1954 Remmer ruling from the U.S. Supreme Court on the issue of juror misconduct, the “evidence is presumed to prejudice (cause harm to) the defendant, and the government bears the burden of rebutting that presumption.”

But later rulings have suggested that the burden of proof more properly lies with the defendant during such a hearing.

Adams’ attorneys cited a 2003 Ohio appeals court ruling that states, “A (Remmer) hearing is required to show actual prejudice because juror bias will not be implied. Nevertheless, contact between a juror and a party carries a presumption of actual prejudice and, at the hearing, the State bears the burden of rebutting that presumption by showing that the jurors were not affected.”

In some juror-misconduct cases, “the relevant facts of the juror misconduct, influence or contamination are already before the court, and the court can directly proceed to the prejudice analysis,” the filing states. But this case “needs additional fact-finding before proceeding to the prejudice analysis.”

WHAT JURORS KNEW

Evidence produced so far suggests that “multiple jurors knew about Adams’ prior conviction during all or part of the sentencing phase of his trial,” the filing states. But because Adams later was sentenced to something other than the death penalty, there is no need to address that, the filing states.

In order to establish the need for Adams to get a new trial, however, “Adams must show that the jurors knew of this extraneous information during the trial phase.”

If that is shown, then the parties will try to persuade Donofrio that the “bias” or “prejudice” of that information affected the verdict.

Adams “bears the burden to show that one or more jurors had their perspectives on the case influenced by knowing about Adams’ prior conviction,” it states.

“If Adams is successful and can prove bias, the remedy would be a new trial,” the filing adds.

“If it is proven at the upcoming hearing that a juror or jurors knew about Adams’ prior rape conviction, this knowledge has to have had a prejudicial effect,” the filing adds. “Prior to the trial, the judge found that Adams’ prior conviction — and its similarity to the underlying conviction” in the Tenney murder — was “too prejudicial to be admitted” in the Tenney trial, the filing states.

CHILLING FACTS

Ralph Rivera and Ed Czopur, county assistant prosecutors, gave a chilling recitation of facts in the Tenney case to start their filing.

It begins with a break-in at Tenney’s apartment a week before she was killed. She reported to Youngstown police detective William Blanchard that she heard someone at 1 a.m. Dec. 25, 1985, at her door “with the keys, like they were trying to get in.” Nothing more happened.

She called her boyfriend, who stayed with her several hours that night. After he left, she heard someone at the door again. This time, the person entered her apartment, and Tenney called 911.

There was no mention of anything else happening that night. Police investigated and found footprints in the snow leading to a Dennick Avenue residence.

“Less than a week after the break-in, on the morning of Dec. 30, 1985, Tenney’s dead body was discovered in the Mahoning River,” the prosecution filing states.

When police spoke to Adams later, they found Tenney’s ATM card in a jacket owned by Adams. Friends said Adams had tried to call Tenney late at night, asking her to let him come up to her apartment. She changed her phone number.

Prosecutors tried Adams in the Tenney murder after Adams completed his prison sentence in the rape and kidnapping case. Advancements in the use of DNA allowed for additional evidence to be presented at the trial that was not available in 1985.

The new prosecution filing contains 10 pages of history on the case, then provides history on the trial, appeals and 2020 federal habeas corpus (a fundamental right in the Constitution that protects against unlawful and indefinite imprisonment) petition that included the allegations of juror misconduct.

In a short section at the end, prosecutors cited a 2021 federal court ruling regarding a Miami County, Ohio, jury-misconduct case. The court found that the “burden (of proof) is on the party alleging juror misconduct to establish prejudice.” A new trial can be granted “based on misconduct of the jury that materially affects the defendant’s substantial rights,” the filing states.

The filing concludes that “the above makes clear the answer to which party holds the burden at the upcoming Remmer hearing. The answer is that it is the defendant’s burden, solely.”