HAMILTON -- After a jury was unable to reach a decision in the retrial of a Fairfield man accused of patient abuse and assault, Butler County Prosecutor Robin Piper said he would take the case to trial again -- for a third time.

        Mr. Piper said that's because it's unacceptable for a person with disabilities “to be abused by the person who is responsible for giving them care” — and he is firmly convinced that's what happened in this case.

Ivers

        “Not only is it an assault on a person, but it also violates a trust,” Mr. Piper said. “I'd rather lose the case than do nothing.”

        Meanwhile, defense lawyer Frank Schiavone said he intended to file a motion to dismiss the charges against Timothy Lee Ivers, who has just been through his second mistrial while facing charges of felony patient abuse and misdemeanor assault for alleged inappropriate discipline of a mentally retarded man in 2001.

        A jury of seven men and five women deliberated about 10 1/2 hours over two days before telling Judge H.J. Bressler they were hopelessly deadlocked. He thanked jurors for their service, noting they “struggled mightily,” and discharged them just before noon Thursday.

        “Please don't leave here feeling like you are somehow a failure in this process because you're not,” he said, adding that jurors followed their consciences as they were instructed to do. He admonished them not to talk about their jury service until Mr. Ivers' case comes to some resolution, so as not to affect another jury if one is seated.

        Mr. Ivers' first trial ended in a mistrial in April after his lawyer disputed whether a document should have been included as evidence.

        The case underscores the difficulty of prosecuting a case in which a mentally retarded person, who is unable to speak about what happened to him, has been allegedly abused. The Cincinnati Enquirer, in an investigation published earlier this year, reported that victimization of the mentally retarded is rarely prosecuted — and the alleged abusers are sometimes paid to leave their jobs.

        Mr. Ivers, 40, was among six Butler County Board of Mental Retardation (MRDD) employees who were suspended or placed on administrative leave after allegations of abuse arose in early 2001.

        He remains on unpaid leave. Two other employees resigned and two have been fired, including Jamie Ray Puckett, who served 60 days of a six-month jail sentence after pleading no contest to two counts of patient abuse and two counts of assault. The sixth employee remains with the agency after serving a brief suspension.

        Brenda Cox, the assistant prosecutor who has presented evidence against Mr. Ivers in both of his trials, said she was disappointed that the case didn't reach a conclusion. But she said she appreciated the jury's “valiant effort” to decide the case.

        Pam Long, MRDD spokeswoman, praised Mr. Piper, his staff and Hamilton police for remaining steadfast.

        “It would be very easy to walk away from this case,” she said.

        Pursuing the charges, no matter how difficult, sends a message to her agency's clients and their families: “Their lives are important and you can't take advantage of someone.”

        Meanwhile, Mr. Schiavone said he thought the jury's inability to reach a decision showed “the evidence in the case is not clear.” He said that even though there is an audiotape of the alleged abuse and a videotape of several seconds that preceded it, both are subject to interpretation, “and those are the ingredients for a hung jury,” he said.

        On Jan. 26, 2001, Mr. Ivers was employed at the Hamilton Center, a workshop for the developmentally disabled. The video shows Mr. Ivers taking Glenn Kidd, then 36, into a restroom, where an audiotape recorded sounds that “sounded like smacks” and Mr. Kidd “yelping in pain,” Ms. Cox contends.

        But Mr. Schiavone argues there's an innocuous explanation for the sounds: both men accidentally running into a chair that had been left in the restroom.

        Judge Bressler has set an Aug. 30 conference to determine what happens next with the case.

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