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Late last month, three Cuyahoga County men who have spent 19 years in prison for murder were freed on bond and granted a new trial.  Attorneys at the Ohio Innocence Project had discovered a trove of exculpatory evidence that had never been disclosed to the original defense counsel.  The judge in the case called the Brady violation “deliberate and malicious.”  It involved a notorious former chief prosecutor writing a letter to the East Cleveland police ordering them not to hand over evidence, including eyewitness statements that contradicted the state’s case.

Yet, unlike recent exonerations in North Carolina and Alabama, news of the decision didn’t travel much beyond state and local media.  The men were not on death row, no DNA evidence was involved, and it seems likely they will be retried.  Lacking most of the hallmarks that have lately qualified prosecutorial misconduct as worthy of national attention, news of the case came and went.

But a slightly closer look reveals that the prosecution and the subsequent defending of the convictions against Laurese Glover, Derrick Wheatt, and Eugene Johnson encapsulate some of the more disturbing aspects not only of the violation of defendants’ constitutional rights and the system that breeds those violations, but the trouble with some of the recent attempts by prosecutors themselves to combat the misdeeds of their predecessors.

An Eyewitness Case

In February of 1995, nineteen year-old Clifton Hudson was shot and killed on a street in East Cleveland.  In its case against Glover, Wheatt, and Johnson, the state produced one eyewitness, fifteen year-old Tamika Harris, who testified that she had seen Johnson shoot Hudson and then get into a van with two other black men in it.  In addition, they called two experts to testify on “gun residue” evidence obtained through an “Atomic Absorption Kit” (a now widely discredited forensic method).

The defense put on two eyewitnesses of their own.  Both testified that they had seen the shooter, and that he was taller than Johnson, and lighter skinned.  Assistant Prosecutor Michael Horn urged the jury to ignore these witnesses.  Further, in order to explain why the “gun residue” was found on Wheatt, despite the state’s eyewitness identifying Johnson as the shooter, Horn urged the jury to believe his “two shooter” theory, in which Wheatt had fired, missed, and then handed the gun to Johnson, who he claimed must have been wearing gloves found in the vehicle.  The jury took his urging and convicted all three men of murder.

By fits and starts, the case has been unraveling ever since.  Most pointedly, in 2004, Tamika Harris recanted her identification of Johnson, saying she had never seen the man’s face, only his clothing, and that her testimony to the contrary had been weighing on her conscience.  Based on her affidavit, a trial court granted Johnson a new trial.  The grant, however, was overturned by a state appellate court, which held, first, that Johnson had failed to appeal within 120 days of learning of Harris’ recantation, and second, that her changed testimony wouldn’t have made a difference to the outcome of the trial because she had been cross-examined on what she did and didn’t see.

“Vindictive, Unprofessional, and Outrageous”

The recantation of the lead witness being insufficient to warrant a new trial, the case eventually wound up at the Ohio Innocence Project, which reviewed the history of the post-conviction proceedings.  Back in 1998, the defendants had sought, through a public records request, to obtain the original investigative files of the East Cleveland Police.  We now know that those files contained the following:

  • Evidence that the victim, Clifton Hudson, had been threatened with deadly force the week before he was killed, and that his brother had been shot at, both by men other than the defendants.
  • Statements by two previously undisclosed eyewitnesses, the Petty brothers, who had unobstructed views of the shooting, and said the shots had come from a different direction than the state asserted.
  • A statement by Dante Petty that he personally knew the shooter he saw commit the murder, and that he was not one of the three defendants.

The First Assistant Prosecutor in Cuyahoga County at the time (later to become the Chief Prosecutor), was Carmen Marino (more on him in a minute).  In response to the defendants request for these files, Marino sent a letter to the East Cleveland Police:

It has come to our attention that the City of East Cleveland intends to release the police file of the investigation of the above captioned case.  It is our position that said police file and its contents are not public record, thus any release could constitute a wilful violation of the law.

You are hereby directed to turn over to the Cuyahoga County Prosecutor’s Office Investigator presenting this letter the entire department file concerning the above captioned matter, including, but not limited to, all items of the file contained within the Detective Bureau as well as any and all copies which exist elsewhere, including, but not limited to, the Records Room of East Cleveland.  Said file and all contents are to be handed over to Cuyahoga County Prosecutor’s Office Investigators forthwith.

It is difficult to know where to begin when discussing this letter.  Do you start with a highly placed prosecutor threatening a police agency that they may be on the verge of “a wilful violation of the law”?  Or do you start by pointing out the determination to remove from police custody any and all trace of their own work product?  Perhaps it is best to note first the most obvious effect of the letter: to deny the defendants access to the evidence that would one day free them.

Alternatively, one could simply quote from Judge Nancy Russo’s recent opinion granting the three men a new trial:

A review of the evidence firmly supports the conclusion that Carmen Marino maliciously inserted himself into a criminal proceeding, and that he also sought to suppress evidence from the defendants, that he concealed public records from the citizenry, and that he subverted the process of justice, thereby violating each of the defendants’ individual rights to a fair trial. This Court also finds that Marino’s malicious suppression continued throughout the post-conviction phase.

Marino…had no legal standing to issue the 1998 letter to East Cleveland Police Department; [] neither he nor the Prosecutor’s Office represented the City of East Cleveland, nor its Police Department, and in fact, they would have been precluded from doing so as a matter of law and ethics.

In announcing her decision from the bench, Judge Russo added, “Carmen Marino is infamous in Cuyahoga County for his vindictive, unprofessional and outrageous misconduct in criminal cases.”  She described him as, “the architect of the destruction of a fair trial.”

The Case in Perspective

Indeed, Marino is infamous in Cuyahoga County.  Five of his convictions have been overturned by the Ohio Supreme Court on misconduct grounds, a Ohio judge has said he should be criminally prosecuted, and numerous other cases of suppressed evidence have emerged from his time as both First Assistant and Chief Prosecutor.

And here is where this case begins to intersect with two larger issues of prosecutorial culture and conduct, both of which we will be writing about at greater length in the coming weeks and months.

The first is the remarkable pattern of high esteem (and high office) given to the prosecutors who turn out to be the worst, serial offenders when it comes to misconduct.  Marino didn’t just run the Cuyahoga prosecutor’s office.  When he left he had an award named after him.  The Carmen Marino Award for “integrity and professionalism in the pursuit of justice.”  It wasn’t until 2008 that the editorializing of the Cleveland Plain Dealer shamed Marino’s successor into dropping Marino’s name from the “prestigious” prize.  Across the country, as we will discuss, the examples of this are legion, of the most celebrated and powerful prosecutors turning out to be among the most corrupt, and together they put paid to the “bad apple” theory of prosecutorial misconduct that is still abroad in the land.

The second, with a more immediate impact on Johnson, Wheatt, and Glover, is the checkered, nascent career of the Conviction Integrity Units that have popped up around the country in response to the increased attention the media has paid particularly to death row exonerations.  As we have written previously, the picture here is a mixed one, and still very much in the developing stage.  Some, as in Brooklyn with Ken Thompson’s efforts to right the wrongs of the Charles Hynes era, have shown some promising results.  As it happens, the current Chief Prosecutor in Cuyahoga County, Timothy McGinty, has also set up a CIU, and we have praised him in the past for his swift response to misconduct in his office.

Which begs the question of why McGinty, despite his reform agenda, seems intent on defending Marino.  Last month, Judge Russo granted the three men release on $50,000 bonds without hearing bond arguments from the state.  In response, McGinty’s office filed a motion requesting a bond hearing (now scheduled for April 20th), in which his assistants argue (a) that there is no evidence Marino did anything illegal or unethical in relation to the case, (b) that the recanted eyewitness testimony was insufficient to warrant a new trial, as the appellate court said, and (c) attacking Russo’s characterizations of Marino because they were not part of the defense’s own argument during the motion for a new trial.

In the motion, his office writes, “[N]o evidence was presented that Mr. Marino had any pretrial or trial interaction with the East Cleveland Police Department regarding this case. There is no evidence Mr. Marino had any involvement in this case until several years after their convictions were upheld on direct appeal.”  It argues Marino violated no law in instructing the police not to disclose the evidence, because police investigative files were not at the time considered “public records.”  Indeed, in speaking to the media about this case, Marino himself has said he was merely following policy not to hand over police records.

McGinty’s reaction is very hard to square with his purported, and in some cases demonstrated, efforts to mend the ways of the Cuyahoga County prosecutor’s office.  Regardless of Marino’s post-conviction involvement, the original prosecutor was under a legal obligation to turn over the Brady material, and either deliberately or inadvertently, he failed to do so.  Confronted with this now incontrovertible fact, the official response is neither a promise to investigate the causes of the constitutional violation, much less contrition, but instead a defense of a now notorious predecessor.

Alas, this is hardly an isolated case when it comes to offices that have set up CIUs.  In the months ahead we will be taking this issue up in more detail.

In the meantime, Laurese Glover, Derrick Wheatt, and Eugene Johnson await McGinty’s decision on whether to put them on trial yet again for the murder or Clifton Hudson.

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