DAYTON — China Arnold's first aggravated murder trial ended in a mistrial. Her second ended in a conviction.

The question now before Montgomery County Common Pleas Judge Mary Wiseman is: Will there be a third?

Before the second trial was over, defense attorneys filed a motion for a new trial. They claim a key prosecution witness has changed her testimony and allege several errors by Wiseman, as well as prosecutorial misconduct.

In a memorandum filed Sept. 8, the same day Wiseman sentenced Arnold to life in prison without parole, attorney Jon Paul Rion asked for a judgment of acquittal or a new trial — including a special prosecutor appointed to "pursue any further prosecution against her and to investigate the misconduct that occurred during the first and second trial."

Montgomery County prosecutors responded Sept. 22 with their own memo.

"Not only is defense counsel's alleged newly discovered evidence far from new, and even further from material, but their allegations of prosecutorial misconduct are completely unfounded and baseless," prosecutors Dan Brandt and Jill Sink wrote.

As for a new trial, they wrote "there is no question that defendant is not only not entitled to a new trial, she is not even entitled to a hearing on her motion."

Arnold, 28, denies killing her baby in a microwave oven. The girl, 28-day-old Paris Talley, died Aug. 30, 2005.

Wiseman, who is up for election in November, had not set a date for a hearing as of late last week.

But the two memorandums filed with the Montgomery County Clerk of Court's Office detail the possible arguments both sides will make.

Witness recounts

Linda Williams testified during Arnold's first trial that she had a sexual relationship with Arnold while they were in the Montgomery County Jail together. She also testified that Arnold admitted killing her baby in the microwave.

At the second trial, prosecutors told Wiseman that Williams could not be found. Prosecutors played a videotape of Williams' prior testimony.

On Sept. 2, after Arnold was convicted but as her trial's sentencing phase was starting, Williams was arrested on outstanding warrants and booked into the jail. She called Rion's office, then gave an affidavit to Rion.

According to the memorandum, Williams said she had been forced to testify falsely and that Arnold never admitted any guilt concerning the baby's death. She said Arnold "is innocent and they need to let her go home."

During her interview with Rion, Williams alleged a pattern of harassment. She said deputies had come to her house and put a gun to her kids' heads. She said she had incriminating messages saved on her phone, but someone had erased them, and that investigators were tapping her phone.

On one occasion, the prosecutor's investigator threw her up against his car and told her to shut up. He then "pushed me in his car and took me to the prosecutor's office where my baby's heart flatlined and they rushed me to the emergency room at Miami Valley Hospital."

She also told Rion that prosecutors paid $3,500 for her to stay in hotels for two months earlier this year, and prosecutors' investigators told her not to tell Rion about it or they would get in trouble.

Rion's memorandum claims this is a discovery violation since the defense never knew about the prosecutors providing housing for Williams.

In their memorandum, prosecutors argue that the court "must look upon a recantation with utmost suspicion."

Prosecutors state Williams went to police with her story on March 28, 2007. On Jan. 7, 2008, she told police Arnold had confessed to her.

On Jan. 27, prosecutors' investigator Don Otto called Wiliams to confirm her availability to testify the following day. Williams, screaming and crying, told Otto that her boyfriend had beaten and raped her.

Williams was treated at Miami Valley Hospital, then Otto arranged for her to stay at a hotel that night. His concern was her safety, according to prosecutors.

As for the claim that investigator Gary Ware assaulted her, prosecutors write "in fact, Inv. Ware was not even in Montgomery County on Jan. 28, 2008, the day Ms. Williams alleged the assault occurred."

After Williams testified, she reported that she and her children were being threatened by Arnold's friends and family, so the prosecutor's office put them up in a hotel.

A grant application to the Ohio Attorney General's Office, included as an exhibit with Rion's memo, signed by Montgomery County Prosecutor Mathias H. Heck Jr., shows prosecutors paid $3,406.65 for housing for Williams.

This was not a discovery violation, because the state did not secure housing for Williams in exchange for her testimony, according to prosecutors.

Prosecutors state that Williams later demanded cash from the prosecutor's office and became angry. "She then began threatening to "call Rion's office and get China out of jail," according to their memo.

On Sept. 2, when Williams testified in Wiseman's chambers out of the presence of jurors and spectators, she declined to answer prosecutors' questions, invoking her 5th Amendment right against self-incrimination, which prosecutors state "highlights the complete lack of credibility of her recantation."

That same day, Sheriff's deputy David Ridgeway testified that Williams said in front of him that Arnold was "guilty, but I don't want her to go to jail," that "the Rions are stalking me" and that "the prosecutors are making me lie."

The Montgomery County Prosecutor's Office is currently prosecuting Williams' son for murder, which "may have provided her with motive to lie," according to the prosecutors' memo.

Other witnesses

Rion's memorandum also claims Wiseman made errors by not allowing certain witnesses to testify. One was the boy, a relative of Paris Talley, the defense pointed to as the baby's killer.

Had defense attorneys truly believed the boy was guilty, they could have called the boy as a witness and accused him, the prosecutors' memo states.

During the trial, another boy testified he saw Talley's relative put the baby in the microwave. Rion's memo claims another boy came forward after the verdict and said the Talley relative confessed to him at Sunday school. That second boy does not know the child who testified, Rion's memo states.

Prosecutors counter that this evidence, including the "written but unsworn and unauthenticated statement of this witness, are completely incredible and do not entitle this defendant to a new trial."

The first boy's testimony "completely defied the unequivocal medical and scientific evidence" and prosecutors established the boy was "not even present the morning Paris was killed," prosecutors wrote.

Rion's memo also claims Wiseman erred by refusing to allow the defense to call two boys who said the Talley relative admitted putting the baby in the microwave. He did so "prior to the manner of the child's death being released to the public." Those two boys came forward just before the second trial, according to the memo.

Prosecutors claim Dayton police Sgt. Gary White interviewed them the day the defense disclosed their names. In their account to White, those boys placed two other children in the conversation with the Talley relative. Those other children later told White "they were not in fact present and no such conversation ever took place," prosecutors wrote.

Rion's memo also states that detectives "terrified" the two boys, pressuring them to deny their story. One boy "wrote out an entirely different statement from his testimony presented under oath because the police scared him so much," the memo states.

In response, prosecutors note that Rion's memo claims that police and prosecutors "threatened, coerced and intimidated several witnesses." However, "the falseness of these allegations is evident in the facts set forth in the affidavits and exhibits attached to this memo and in defense counsel's failure to provide this court with any affidavits to support their allegations," the prosecutors wrote.

What's next

It's not clear if and when Wiseman will schedule a hearing. Her decisions and her previous rulings will likely be appealed to the Ohio 2nd District Court of Appeals.

Rion has said no jury that hears all the evidence, including Williams' recantation, would ever convict Arnold. But prosecutors counter that the defense attorneys' motion is a desperate effort to get a new trial.

"In doing so, they have stopped short of nothing — going so far as to impugn not only the integrity of the prosecutors on this case, but every law enforcement agency in the county and this very court's evidentiary rulings," the prosecutors wrote. "Never mind that their allegations are wild, unsubstantiated and incredible ... they are also blatantly false."

Contact this reporter at (937) 225-2057 or lgrieco@DaytonDailyNews.com.