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YOUNGSTOWN Lawyers question judge's order



Published: Wed, September 12, 2001 @ 12:00 a.m.



According to Judge R. Scott Krichbaum, the witness deliberately ignored and disobeyed his subpoena.

By BOB JACKSON

VINDICATOR COURTHOUSE REPORTER

YOUNGSTOWN -- Bryant McGauley will take the witness stand two weeks after the trial in which he was to testify ended, and he could go to jail when he's finished.

But two defense attorneys, including one who represents McGauley, think the judge who ordered the testimony is overstepping his authority.

McGauley, 19, of Otis Street, was one of three people subpoenaed in July to testify as eyewitnesses during the trial of Frederick Easterly, 19, of Gypsy Lane. The others were Charles Scott, 19, of Guadalupe Avenue, and McGauley's brother, Terrell McDowell, 21, of Otis Street.

Trial was postponed: When none of the three appeared, Judge R. Scott Krichbaum postponed the trial for seven weeks while authorities looked for them.

Scott was the only one located before the trial resumed in late August. He testified during the trial, which ended with Easterly's being acquitted Aug. 28. McDowell has not yet been found, but a warrant has been issued for his arrest.

A hearing was held in August to determine whether Scott was in contempt of court for ignoring the subpoena. He was cleared, though, when the judge ruled there was no proof that Scott knew about the subpoena.

Ruling: At a similar hearing Tuesday, the judge ruled there was enough reason to believe that McGauley knew about his subpoena and deliberately disobeyed it by not showing up to testify.

Before sentencing McGauley, Judge Krichbaum said he intends to put him on the witness stand and make him give the testimony that should have come out at trial.

"He was subpoenaed to give testimony and I want to hear it before I punish him," Judge Krichbaum said. "I need to understand what this man's testimony would have been, and what he denied the jury from hearing."

The severity of McGauley's sentence will depend on how important his testimony would have been during the trial, Judge Krichbaum said.

"I can't tell you how frustrated justice is in this case because of this man's failure to appear and present testimony," Judge Krichbaum said.

Defense response: Defense attorneys Louis DeFabio and J. Gerald Ingram said the judge does not have authority to force McGauley to testify at what is essentially his own sentencing hearing.

"The Fifth Amendment implications are astronomical," said Ingram, who represented Easterly. "It's so unique that it tramples the Bill of Rights."

DeFabio, who represents McGauley, said he does not intend to let McGauley testify and will file a challenge to stop it, though he was not sure what action he will take.

"Whatever his testimony would have been is irrelevant at this time," DeFabio said.

Judge Krichbaum said Ingram will be welcome to attend the hearing and cross-examine McGauley, just as he could have during the trial. Ingram said he's not sure whether he'll do it.

"Legally it accomplishes nothing, but in terms of public relations [for Easterly] it might," he said. "It is a procedure unlikely to elicit an accurate picture."

He said testimony of all three witnesses should be weighed against one another so their truthfulness and credibility can be properly gauged. Statements each gave to police after the shooting contained inconsistencies that the jury could have heard, he said.

bjackson@vindy.com




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