By PETER H. MILLIKEN
VINDICATOR STAFF WRITER
YOUNGSTOWN — Barring action by another court, the execution of convicted murderer Mark Aaron Brown can go forward as scheduled Thursday.
The 7th District Court of Appeals here has denied Brown’s request for a new trial.
The three-judge panel’s ruling was announced around 8 p.m. Tuesday after a hearing earlier in the day. The hearing was on Brown’s appeal of a decision out of Mahoning County Common Pleas Court also denying his request for another trial.
The appellate court’s decision was written by Judge Cheryl L. Waite, with Judges Gene Donofrio and Mary DeGenaro concurring.
The judges overruled all four assignments of error argued by the defense.
Even before the decision was announced, a sister of the convenience-store owner Brown was convicted of killing 16 years ago, and an assistant county prosecutor said they thought there should be no further delay in Brown’s execution.
“He walked in there, and he killed two innocent lives, and he should pay for that,” said Terri Rasul of Youngstown, sister of Isam Salman, the slain owner of Midway Market on Elm Street. “He has no remorse whatsoever,” she added.
“He walked into a store and gunned down two working men for absolutely no reason,” said Ralph Rivera, an assistant Mahoning County prosecutor, after Tuesday afternoon arguments before the 7th District Court of Appeals on whether Brown should get a new trial.
The opening remark to the three-judge panel by the public defender trying to keep Brown alive reflected her view that Brown is a victim of injustice, but she seemed resigned to his execution.
“Mark will be dead in two days despite the fact that two of the witnesses who testified against him in the trial have admitted that they lied when they testified at the time of trial,” Atty. Rachel Troutman, an assistant Ohio public defender, told the judges.
“The jury struggled with the verdict,” Troutman said, noting that it deliberated 15 hours before convicting him and 20 hours before recommending a death sentence for him.
After the jury convicted him early in 1996, Brown, now 37, was sentenced to death for killing Salman, 32, and to life in prison for killing a clerk, Hayder Al-Turk, 30, who was shot first. Both victims were shot in the head in the North Side store Jan. 28, 1994.
Judges Waite, Donofrio and DeGenaro heard arguments on Troutman’s request for a new trial based on what she said was newly discovered evidence.
The public defender had appealed the common pleas decision Judge Maureen A. Sweeney not to grant Brown a new trial. After a two-day hearing about two weeks ago, Judge Sweeney found two witnesses, Marcus Clark and Myzell Arrington, who recanted their trial testimony, not to be credible.
Rivera argued that the witnesses’ trial testimony was credible, but their recent recantations were not, so there was no newly discovered evidence that would warrant a new trial.
Judge DeGenaro said after the hearing that the appeals court would limit itself to deciding whether Brown should get a new trial. “We have no legal authority to stay this execution,” she said.
“I am confident that justice is going to be served,” Rasul said after the hearing, adding that she was sure the appeals court would uphold Judge Sweeney’s decision.
The Ohio Supreme Court refused Monday to delay Brown’s execution.
Brown has also asked a federal appeals court to delay his execution. The 6th U.S. Circuit Court of Appeals in Cincinnati received his request Tuesday to overturn the lower court’s ruling that his execution should not be halted.
Brown is asking for the delay while he challenges the state’s new lethal-injection procedure, which includes a never-before-tried backup method that injects drugs into a muscle instead of a vein. U.S. District Court Judge Gregory Frost refused Monday to delay the execution.
In 14 years of appeals, Brown’s case has gone three times to the U.S. Supreme Court, which has refused to review it each time, Rivera said.
MARK AARON BROWN A time line
An overview of the events leading up to the scheduled execution of Mark Aaron Brown.Jan. 13: Ohio Parole Board recommends against clemency for Brown. Gov. Ted Strickland later accepts the board’s recommendation.
Jan. 15: Ohio Public Defender’s Office has hearing before Judge Maureen A. Sweeney of Mahoning County Common Pleas Court on Brown’s request for a new trial based on new evidence.
Jan. 20: Judge Sweeney denies Brown’s request for a new trial.
Jan. 22: Ohio Public Defender’s Office appeals Judge Sweeney’s
ruling to the 7th District Court of Appeals.
Monday: Ohio Supreme Court refuses to delay Brown’s execution as does U.S. District Judge Gregory Frost.
Tuesday: 7th District Court of Appeals hears oral arguments on whether Brown should get a new trial. Brown also files appeal with the 6th U.S. Circuit Court of Appeals in Cincinnati to delay his execution.
Thursday: Brown is scheduled to die by lethal injection at the death house in Lucasville.
Source: Vindicator files, AP