TAMPA — Federal prosecutors told a judge Thursday that they will retry Cortnee Brantley on a charge of failing to aid investigators after her boyfriend allegedly shot and killed two Tampa police officers.
The decision came less than a day after the judge declared a mistrial after 12 jurors who had deliberated more than eight hours told him they were unable to reach a verdict.
U.S. Attorney Robert O'Neill and defense attorney Grady Irvin Jr. declined to comment on the decision for a new trial.
All eyes will now be on U.S. District Court Judge James Moody, who can set a new trial date or dismiss the charge against Brantley.
He appeared ready to dismiss the case Tuesday after the close of testimony. Moody said he questioned whether prosecutors had proved Brantley took steps to conceal from police that her boyfriend, Dontae Morris, was a felon in possession of a gun and ammunition — a requirement for the charge she faces, a misprision of a felony.
The judge said her refusal to identify Morris to detectives as the suspect who killed Officers David Curtis and Jeffrey Kocab on June 29, 2010, was not sufficient by itself to prove the charge.
Morris was Brantley's passenger when Curtis stopped her for driving without a license plate. Morris is accused of killing the officers as they tried to arrest him on a warrant. The crime was caught on the dashboard camera in Curtis' cruiser.
Moody dismissed the charge in 2010, saying prosecutors could not prove concealment. But an appeals court later reinstated it and said Moody should have ruled only after hearing evidence at trial.
Moody delayed a decision on granting a judgment of acquittal until after the three-day trial ended.
If the case is retried, one challenge for prosecutors will be to clearly outline for jurors the sometimes confusing elements of misprision of a felony, an obscure law with roots dating back to England in the 1300s.
John V. Hurd, a Massachusetts lawyer, said in a 2008 Suffolk University Law Review article that misprision of a felony is related to the ancient duty of English citizens to "raise a hue and cry" upon witnessing a crime in the days before police forces.
In English common law, the responsibility was limited to men between the ages of 15 and 60.
At least some jurors in Brantley's case, who declined to comment, seemed confused about the charge, judging by questions they raised during deliberations. Their questions to the judge included a request for a definition of the charge.
Surprisingly, the shooting of the officers is not the felony Brantley is accused of failing to report. It's that Morris was a felon with a gun and ammunition. But to win a conviction, prosecutors also must show Brantley took steps to conceal that crime.
Moody has previously ruled that he did not think Brantley's behavior after the killings — fleeing, hiding her car and refusing to identify Morris — proved she tried to conceal Morris was a felon with a gun.
Morris has not yet stood trial on the murder charges.
William R. Levesque can be reached at email@example.com or (813) 226-3432.