JUDGE BLAMES SYSTEM FOR BLOWN TRIAL DEADLINE
Judge blames the systemfor blown trial deadline
The defendant's lawyer says the time has passed for the state to prosecute the old cases.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
YOUNGSTOWN -- For 9 1/2 months, Zachary T. Howell's gun, drug and loud-music charges lay dormant in municipal Judge Robert P. Milich's court.
It gave the 24-year-old Howell time to be arrested again in June on another gun charge.
Judge Milich listed a number of reasons why the cases "fell through the cracks," including the lack of a functional computer system to track cases. Five of the charges are misdemeanors and one is a felony.
The bottom line, he said, is that it happened on his watch and he takes the blame. "I wish I could do everything right, but unfortunately I can't with what we have to work with."
Judge Milich can't be sure yet, but said "it's a possibility" that the open cases have passed the time in which they could be prosecuted.
"Mathwise, it's a slam dunk," said Thomas E. Zena, one of Howell's lawyers. "There may be a hole for the state to crawl through."
He and other lawyers said judges control their own dockets. It is their responsibility to make sure deadlines are met so cases are not lost because of speedy trial concerns.
Zena explained that a defendant not in jail should come to trial within 270 days on felony charges and 90 days on misdemeanors, unless the time is waived. There's no record to indicate that Howell waived his right to speedy trial.
Problem surfaces: It was two weeks ago that the delay in disposition of the cases came to the attention of Judge Elizabeth A. Kobly, who gathered all of the old files in her office to figure out what happened. She got involved because three of the six pending charges originated in her courtroom last summer -- before she was appointed to the bench -- and had been transferred last August to Judge Milich by a visiting judge.
Among the files is a memo the clerk of courts sent Feb. 26 to Judge Milich, asking for the disposition of Howell's cases. The judge said he gave the memo to his bailiff and later learned that some of the cases were closed and some active.
Judge Milich had no definitive explanation as to why the clerk's memo didn't prompt him to act on the pending cases months ago. He said he has been working on it off and on.
"We need a better system of accountability, which we are working on," Judge Milich said. "It's a nightmare keeping up with this volume. Those things happen. Cases slip through the cracks. The system's not perfect."
The clerk's memo, a copy of which went to Judge Kobly two weeks ago, states that several inquiries had been made about Howell's cases by the prosecutor's office and police department.
Transcript: In Judge Kobly's fact gathering, she obtained a transcript of a motion-to-dismiss hearing Judge Milich held for Howell on Oct. 5, 2000.
The Vindicator also obtained a copy of the transcript. It shows that Judge Milich considered a motion filed by another of Howell's lawyers, Anthony P. Meranto, who wanted the judge to dismiss loud-music charges from his client's arrests in May and June 2000.
Meranto argued that the city's loud-music ordinance was flawed. Michael J. Maillis, an assistant city prosecutor at the time, said he had case law that Judge Milich could review and pointed out that the law had already been upheld in municipal court by Judge Robert A. Douglas Jr.
Before Howell's cases, Judge Milich had been quoted as saying he would uphold the ordinance as written.
Council revamped the ordinance in February after Judge Kobly determined that it was vague, unconstitutional and unenforceable. The revised ordinance requires that the sound be heard 50 feet from the vehicle.
At the October hearing, meanwhile, Meranto said that "the other charges flow out of the stops for loud music" and that he believed Maillis would address those charges at a later time.
Other charges: Judge Milich said the other four charges were not identified -- on the record in the transcript -- but acknowledged that he didn't ask about them, even though they were pending in his court. He said if the cases were before him they should have been noted on the record.
The other charges from Howell's arrests last summer were two counts of improper handling of a firearm in a motor vehicle, drug abuse and illegal possession of a firearm.
A preliminary hearing should have been held within a timely fashion on the last charge, a felony, and a determination made by Judge Milich whether to bind it over to a Mahoning County grand jury, said city Prosecutor Dionne Almasy.
Preliminary hearings are held within 10 days of an arrest if the defendant is in jail and 15 days if he's out, unless the defendant waives the time, which Howell did. Typically, when a waiver is signed, the hearing will take place within 15 to 25 days, at most.
Howell, of Lincoln Park Drive, had been set for a preliminary hearing July 10, 2000, in Judge Milich's court but failed to appear, and a warrant was issued. Another preliminary hearing was not scheduled, records show.
Judge Milich, according to the Oct. 5, 2000, transcript of the motion-to-dismiss hearing, discussed with Meranto the transfer of some of Howell's charges to his court by a visiting judge. Judge Milich said only the administrative judge has the authority to transfer cases, but later added, "Well, we'll sort it out."
At the end of the hearing, 287 days ago as of Thursday, the judge took the loud-music charges under advisement. There's nothing noted on the files to show that he rendered a decision on those charges or took any action to process the remaining drug and gun charges.
Judge Milich said he has no record of a ruling so, "I evidently didn't [rule] if there's nothing in the record."
Tracking system: A reporter asked Judge Milich why his bailiff, who had checked on the open cases in response to the clerk's February memo, didn't remind him about the loud-music charges he'd taken under advisement. The judge said there's no formal system set up to identify time lines.
The bailiff had shown a reporter a clipboard that he said was the court's method of keeping track of cases taken under advisement.
Judge Milich said the courts intend to hire an assignment commissioner to track cases. Upgrades to the computer system are also needed, he said.
When told that police arrested Howell in June on another gun charge, Judge Milich said: "Well, he's got quite a history."
Latest arrest: Zena appeared in Judge Kobly's court Tuesday on Howell's latest charge, carrying a concealed weapon, a felony.
Patrolman Dave Wilson arrested Howell at 9 a.m. June 25 on the Himrod Expressway after radar tracked his 2000 Cadillac Deville going 76 mph in a 50 mph zone. Wilson smelled a strong odor of marijuana inside the car and on Howell.
When the officer asked about narcotics, Howell said he'd just finished smoking some marijuana but had none in the car.
Police who searched the car found and confiscated a loaded 9mm handgun. Officers also seized $4,760.
Zena asked Judge Kobly to return the cash to Howell. She refused after learning from Anthony J. Farris, an assistant city prosecutor, that police continue to investigate Howell and may file more charges.
Zena said the only thing Howell is guilty of is being a young man who had $4,700 on him.
The judge reset the hearing so that all officers who participated in the traffic stop could be in court to testify. Zena specifically wanted to question Detective Sgt. Douglas Bobovnyik, who handled the radar unit that clocked Howell's speed.
After the hearing Friday afternoon, Judge Kobly bound the case over to the Mahoning County grand jury.
Reports reviewed: The Vindicator, meanwhile, reviewed last summer's police reports of Howell's charges that Judge Milich said slipped through the cracks in his court.
When police heard loud music coming from the 1993 Lexus Howell was driving on South Avenue at 1:18 a.m. May 27, 2000, they pulled him over. As the officers approached the car, they detected the smell of marijuana and found what appeared to be marijuana on top of cassette tapes.
Police also found a loaded 9 mm handgun in the car's glove compartment.
Howell then faced charges of improper handling of a firearm in a motor vehicle, drug-abuse marijuana and loud music.
Less than a month later, at 1 a.m. June 18, 2000, police heard loud music coming from the Lexus on Hillman Street and pulled Howell over. Again, the officers detected the smell of marijuana and searched the car.
The officers found and seized a loaded .45-caliber handgun in the locked glove compartment. The report doesn't indicate that any marijuana was found.
Howell then faced charges of improper handling of a firearm in a motor vehicle and loud music.