Ron Cheek is tired of waiting for his son's killer to die.

Cheek and his family sat through two first-degree murder trials for Troy Merck Jr. After one mistrial, a jury convicted Merck for the 1991 murder of James A. Newton. But twice, the Florida Supreme Court threw out Merck's death sentence, ordering a court to redo the penalty phase of Merck's trial each time because of mistakes.

On Tuesday, Cheek and his family received another setback.

A Pinellas-Pasco circuit judge declared a mistrial in determining whether Merck should be executed for Newton's stabbing death outside a nightclub near Pinellas Park. Judge Brandt Downey did so after a witness mistakenly testified about a threat Merck made against him shortly after the killing.

Downey had barred mention of the threat for fear of prejudicing jurors.

Downey said he was reluctant to grant a mistrial. But the judge said he was sure the Florida Supreme Court would send the case back again if he allowed the trial to continue. He ordered lawyers back to court today to select another jury.

"There is no doubt in my mind if we were to let this go on that they'd do it again" and throw out a death sentence, Downey said. "They'll look for any reason to send this back. And I don't know why. But they will. And I'm not inclined to give them that opportunity."

Downey's decision came during the case's first day of testimony. As he announced his decision, Newton's parents and sister, sitting in the front row, cried out in anguish.

"I'm so frustrated," Cheek said later, standing next to wife, C.J. Cheek, and daughter Cheri Kloss. "This just goes on and on and on. I'm sick and tired of hearing about Troy Merck's rights."

Cheek nonetheless said Downey made the right decision. Otherwise, Cheek said his family would have to redo the trial in three years rather than today.

On Oct. 11, 1991, Newton and several friends went to the City Lites nightclub near Pinellas Park to celebrate his 25th birthday and the birth of his second child. When Newton and his friends left the club, they found Merck, then 19, leaning on one of their cars.

They asked him to move. Merck tried to pick a fight. Newton refused.

Merck attacked Newton with a hunting knife, stabbing him in the back and chest, yelling, "Happy birthday!" Merck lifted Newton's head by the hair and slashed at Newton's face, then twisted the knife in his neck. Two juries recommended a death sentence for Merck, and two judges imposed the death penalty. But each time, the Florida Supreme Court, while affirming his conviction, told the Circuit Court to redo Merck's penalty phase trial.

Each time, the high court cited procedural errors.

Downey, who was not a judge in the earlier trials, said he feared the high court sending the case back a third time if he allowed the case to proceed Tuesday.

"The next time, they might just say life and not give the state the opportunity to get another bite," the judge said.

Merck faces either death or life with the possibility of parole after 25 years.

Cheek and his family sat through two first-degree murder trials for Troy Merck Jr. After one mistrial, a jury convicted Merck for the 1991 murder of James A. Newton. But twice, the Florida Supreme Court threw out Merck's death sentence, ordering a court to redo the penalty phase of Merck's trial each time because of mistakes.

"I'm so frustrated," Cheek said later, standing next to wife, C.J. Cheek, and daughter Cheri Kloss. "This just goes on and on and on. I'm sick and tired of hearing about Troy Merck's rights."

Merck attacked Newton with a hunting knife, stabbing him in the back and chest, yelling, "Happy birthday!" Merck lifted Newton's head by the hair and slashed at Newton's face, then twisted the knife in his neck. Two juries recommended a death sentence for Merck, and two judges imposed the death penalty. But each time, the Florida Supreme Court, while affirming his conviction, told the Circuit Court to redo Merck's penalty phase trial.