McGail is serving a term of 24 years to life in the London Correctional Institution. He was convicted in August 2014 of murder, aggravated robbery and aggravated burglary.
EARLIER: Judge denies sentence reduction for murderer
“I will adamantly oppose any attempt to bail him out in the event he is granted a new trial,” Miami County Prosecutor Tony Kendell said Tuesday afternoon after a conference.
That conference included Kendell, Common Pleas Judge Christopher Gee, who presided over the trial and sentenced McGail, and Eric Eches of Cincinnati, a lawyer for McGail.
Gee set the evidentiary hearing for Jan. 25.
Tuesday’s hearing followed a Nov. 14 decision by Judge Walter Rice in U.S. District Court in Dayton on an action filed on McGail’s behalf in the federal court.
TRENDING: Rauch, businesses face illegal dumping charges: What we know now
Rice, in his order, granted “a conditional writ of habeas corpus, requiring the petitioner (McGail) be discharged from custody unless he is given a prompt evidentiary hearing, not later than 90 days from date, in the Miami County Common Pleas Court on his claim of juror misconduct.”
McGail’s lawyers claimed he was deprived of his constitutional rights to an impartial jury and to confront evidence against him. They claimed this occurred when a juror, according to a juror’s affidavit, told others deliberating in the case that he attended the same church as McGail and that he had never seen McGail or his family at the church.
In his testimony, McGail, then 18, talked about his family and their church activities.
“My decision was influenced to vote ‘guilty’ when the jury foreman … told the jury that he goes to St. Patrick’s church, the same church that McGail testified going to, and that he had never seen Patrick or his family at that church, so McGail must be lying,” the juror wrote in the affidavit, according to the federal court’s ruling. “This information influenced me to not believe Patrick’s testimony.”
TRENDING: Million dollar lottery ticket claimed by Kettering man
Rice said the evidentiary hearing should look at what the jury foreman said about McGail and/or his family’s church involvement and its impact on the jury and its members. Rice asked to be notified of the hearing results.
“Because testimony concerning McGail’s church involvement was obviously used to establish his good character and bolster his credibility with the jury … the importance of the foreman stating privately to the jury that he ‘goes to St. Patrick’s church’ but that ‘he had never seen Patrick or his family at that church, so he must be lying’ cannot be overstated,” Rice wrote.
The affidavit claiming juror misconduct was filed as part of motions with the local court after the trial and was included in decisions by both the local court and the 2nd District Court of Appeals to uphold the conviction. The Ohio Supreme Court did not accept McGail’s case on appeal. The federal court request was filed in 2017.
Troy police said Wintrow died after being shot in October 2013 in his home on Canal Street in Troy. Also convicted in the death were Brandon Terrel, who was sentenced to 14 years, and Jason Sowers, who shot Wintrow and was sentenced to 18 years to life. They testified against McGail.
About the Author