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On his way out the door, Cuyahoga County’s elected District Attorney belatedly conceded to clean up another mess: Tim McGinty dropped murder charges against the “East Cleveland Three”—Eugene Johnson, Derrick Wheatt, and Laurese Glover. This latest and (probably) final move comes after years of battling the defendants’ post-conviction efforts to win a new trial and be exonerated. As we reported last year, the trial court judge, Nancy Margaret Russo, had granted the three men a new trial on the strength of an alarming Brady claim. A former senior prosecutor directed police to withhold evidence in response to public information requests about the case, and to turn over the file to the DA’s office to ensure that no disclosures were made. McGinty’s reluctant decision to finally drop the charges last week reflects the irreversible damage done to the State’s case by this misconduct.

As part of its intransigent and resource-intensive effort to maintain the bunk convictions, the State filed an appeal of Russo’s 2015 ruling. But, in May of this year, the Court of Appeals affirmed the trial court’s decision. The State’s appeal hinged on two key claims: a procedural argument it incorrectly believed meant that the defendants had not filed their request for relief in a timely fashion; and the claim that the suppressed evidence would not have been so helpful as to preclude the convictions. The appeals court quickly disposed of the first claim, pointing out that the defense’s “motion . . . and supporting documents clearly and convincingly demonstrate that the appellees were unavoidably prevented from discovering the [suppressed] evidence. Indeed, the police reports were in the exclusive control of the state.”

On the second claim—involving the ‘materiality’ requirement of Brady—the appeals court conducted a careful analysis and ultimately concluded that if the relevant police reports had been turned over, the defense team at trial could have cast enough doubt on the State’s case to cause a different verdict. The court characterized the decision as a “harder question” than the other issues the State raised, something that is true in nearly every case involving a Brady allegation. One of the biggest flaws in the Supreme Court’s Brady case law is that the materiality test—when used to inform the State’s pre-trial disclosure determinations—encourages prosecutors to gamble on withholding exculpatory information if they are convinced that evidence of the defendant’s guilt is overwhelming. Unsurprisingly, loads of evidence indicates that prosecutors have natural cognitive biases that promote confidence in their view that a defendant they are taking to trial is guilty. These biases often lead prosecutors to withhold rather than disclose evidence.

In the case of the East Cleveland Three, the failure to disclose exculpatory evidence looks less like the product of unconscious psychological effects and more like the work of a crooked prosecutor. As our previous post reveals, Carmen Marino was widely known for trampling defendants’ constitutional rights. The trial court judge acknowledged Marino’s reputation for misconduct, stating that he is “infamous in Cuyahoga County for his vindictive, unprofessional and outrageous misconduct in criminal cases.” Judge Russo described him as “the architect of the destruction of a fair trial.” The State actually tried to appeal the judge’s decision on the grounds that she was unfairly biased against Marino because of his profoundly tainted reputation. Fortunately, the appeals court did not buy that, pointing out that the judge found a specific Brady violation in this case. Nevertheless, it is refreshing that the trial court called Marino out specifically and forcefully. Repeat criminal offenders face heightened penalties for their wrongdoing; why should the same not be true for prosecutors who repeatedly break professional, ethical, and constitutional rules

For the sake of a full record, in addition to our previous post, this Washington Post piece compiles and cites some of the most damning proof that Marino’s misconduct infected many cases. While it is good to see that Ohio’s “prosecutor of the year” is no longer named after Marino (that was the equivalent of naming a home-run award in Barry Bonds’s honor after it became clear he had used steroids), it is unclear how many more cases should be revisited or reversed because of his tactics. At this stage, the East Cleveland Three have now appropriately been cleared for the murder of Clifton Hudson, a crime that is unsolved because prosecutors buried important reports that could have led to a full and effective re-investigation if brought out nearly 20 years ago. Marino evidently retired in 2002. Meanwhile, Mr. Johnson, Mr. Wheatt, and Mr. Glover have to figure out how to pick up the pieces of their broken lives now that they are finally free and out from under the shadow of a murder prosecution.

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