A former high school Junior ROTC instructor accused of sexual misconduct is asking the state's Supreme Court to hear his double jeopardy argument.

Already, the state's Superior Court refused to dismiss the case against Sgt. Maj. Kevin Johnson.

Johnson, 52, of Portersville is accused of sexually assaulting two male students in the Junior ROTC program in the Seneca Valley School District between spring 2005 and January 2008.

A trial that began Aug. 17, 2009, ended minutes into testimony from the first witness, Jackson Township Police Chief Len Keller.

Butler County Judge Timothy McCune declared a mistrial after Keller testified that Johnson had declined to take a polygraph test.

During a subsequent court hearing, Keller testified that he knew polygraph results are inadmissible, but he believed that he could tell the jury he asked the defendant to take the test.

Johnson's defense attorney, David Shrager of Pittsburgh, later argued to McCune that prosecutors should be barred from holding another trial based on double jeopardy.

After McCune refused the request, the defense appealed to the state's Superior Court where a three-judge panel upheld McCune's decision in July.

The defense on Aug. 26 filed a request asking the Supreme Court to hear it's argument.

Although the court has not yet decided if it will hear the argument, the request alone is likely to delay Johnson's trial.

Butler County Court officials have scheduled Sept. 9 and 10 to pick a jury for the case. Testimony is set to begin Sept. 20 Neither Shrager nor Assistant District Attorney Mark Lope could be reached for comment.