A former high school Junior ROTC instructor is asking a judge to dismiss a sexual abuse case that ended in mistrial last month.

The written motion, written by Sgt. Maj. Kevin Johnson's defense lawyer, claims it's "inconceivable" a longtime police chief did not know his testimony about a lie detector test — the statement that caused the mistrial — would have denied the defendant a fair trial.

But, Butler County District Attorney Richard Goldinger responded, saying that to win a double jeopardy motion, the defense must prove there was intentional prosecutorial misconduct.

"This was an honest mistake," Goldinger said Wednesday.

Johnson, 51, 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.

Johnson faces multiple crimes, including statuary sexual assault, child endangerment and corruption of minors.

He claims he is innocent.

A first jury was picked in June to hear the case, but those jurors were dismissed before testimony began to accommodate a delay in the trial's start.

A second jury was picked, and the trial began Aug. 17 and ended that day.

The only witness, Jackson Township Police Chief Len Keller described his interview with Johnson the day the allegations were waged in 2005.

Keller, according to the trial transcript as quoted by the defense motion, said Johnson "... was not sure what he wanted to say or to the effect that he was not sure how he wanted to choose his words, basically declining to make a statement at any time. I did raise the issue of a polygraph, which he declined."

Defense attorney David Shrager objected, and Judge Timothy McCune declared a mistrial.

McCune could dismiss the case if he finds Keller or Assistant District Attorney Mark Lope "specifically undertook to prejudice defendant to the point of denying him a fair trial."

The defense motion alleges Lope knew before trial what was said between Keller and the defendant so Lope erred in asking Keller a "broad-based" question about the interview.