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By Peter H. Milliken & David Skolnick
The heat has been turned up in the race for Mahoning County prosecutor.
Atty. Scott Cochran, a supporter of incumbent prosecutor Paul J. Gains, has been sending documents to the press that contain racist text messages alleged to have been made by either city Prosecutor Jay Macejko, Gains’ opponent, or a person in Macejko’s office.
The messages are about President Barack Obama and Bassil Ally, an assistant city prosecutor, who sued the city and Macejko for discrimination.
Cochran represents the Islamic Society of Greater Youngstown, which sought unsealing of all documents in a federal lawsuit successfully lodged against the city to call attention to discrimination against Muslims and promote tolerance for them.
Ally alleged the city and Macejko discriminated against him based on his Muslim faith. He was awarded a $110,000 lump sum and a $4,000 annual pay raise, boosting his salary to $65,621 when his lawsuit was settled last fall without a trial.
Macejko adamantly denies any wrongdoing, saying Gains is trying to smear him and his campaign. Macejko has the endorsement of the Mahoning County Democratic Party for the March 6 primary election.
On Tuesday, the city’s lawyers asked U.S. District Court Judge Christopher A. Boyko, who presided over the lawsuit, to find Cochran in contempt of court for releasing these materials, saying Cochran did not meet the judge’s requirement that confidential legal discussions in the prosecutor’s office and medical information be redacted before anything is released.
Citing the negative comments about the president and Ally, Gains late Tuesday afternoon called for the party to rescind its endorsement of Macejko in a prepared statement released by Gains’ publicist, Carolyn Rubenstein.
“I just received my Obama stimulus package. It was 3 pieces of chicken, a pack of kool-aid and a dime bag. Did u get yours?” read a text message in a series of texts alleged to have been exchanged between Macejko and Bret Hartup, an assistant city prosecutor.
That message was sent at 1:12 p.m. on a business day, Tuesday, April 7, 2009.
If the Obama message was generated by either Macejko or Hartup, Gains said whoever generated it “should be fired.”
Text messages between Macejko and Hartup were subpoenaed for the Ally case.
Though the court file contains a redacted exhibit featuring the text exchange originally submitted by Hartup, Judge Boyko eventually ordered Hartup to submit an unredacted version of the exchange in the judge’s office for his inspection. That document has yet to be released into the official court file.
In response to Gains’ calling for the county Democratic Party and other organizations to rescind their endorsement of Macejko, party Chairman David Betras said, “This is desperate politics by a desperate politician. Jay has told me that nothing Paul has said is true. I have no indication that it is true. Paul should debate the issues and not engage in the politics of destruction.”
Macejko denied authoring or sending the Obama text message. He said he first saw it Feb. 13 after Cochran’s email containing the texts was sent to Betras. Macejko suggested it might be spam.
“I don’t know where that quote came from. I’m not responsible for it, and it stands against everything that I believe in,” Macejko said in a recent Vindicator interview.
“I did not send that message,” he added. “That’s why the fact that it’s being attributed to me is upsetting.
“I am writing to reassure you that the party endorsed the right man for the job of Mahoning County prosecutor,” Jay Macejko said in a prepared statement submitted to the media late Tuesday by his wife, Atty. Melissa Macejko.
“I was not surprised when I learned of my opponent’s mudslinging this morning. But I am saddened,” Jay Macejko is quoted saying.
“Gutter politics and the politics of hatred and division have no place in 2012. Unfortunately, Mr. Gains remains in the past,” Macejko added.
“I am not a racist. I have never discriminated against an employee or anyone else. ... As a prosecutor, I have treated everyone fairly and never made a decision based upon race, religion or any other improper factor,” Macejko said.
Though Macejko called the Obama message offensive, he said he would not investigate the origin of the message because it’s not a criminal matter, and he has no authority to investigate it.
“I don’t even know where to start, and you’re talking about a text message that we have no idea where it came from three years ago,” he told The Vindicator.
Hartup, Ally, and Ally’s lawyer, Ron Yarwood, could not be reached for comment for this story.
“I’m not behind any of this,” Gains said, referring to release of the Ally lawsuit materials.
He characterized the Obama quote as racist, however, and said of it: “The public has a right to know of this racist behavior.”
If that text message appeared on any message exchange list among assistant county prosecutors, Gains said he would investigate the matter and “immediately” fire anyone on his staff who would send such a text message.
“We have to prosecute people of all colors, creeds, and religions, and we cannot have anybody with racist tendencies prosecuting these people,” Gains said.
Cochran shared a photocopy of a document containing the Obama text with members of the media last week. The Vindicator, because of the court’s sealing order, has been unable to independently verify the authenticity of the document.
Daniel M. Connell, a Cleveland lawyer who represented Ally during the federal lawsuit, but whose representation of Ally has ended, declined to provide The Vindicator with an unedited transcript of all text messages between Hartup and Macejko that were introduced into the Bassil Ally case.
Cochran acknowledged that his law firm, Atway and Cochran, gave $250 this year and $300 last year to Gains’ re-election campaign. Atway and Ally are cousins.
Cochran also said he urged members of the Islamic Society and others to contribute to Gains’ campaign during a meeting in his office to discuss the Ally case and the motion for document unsealing.
“The society wanted the public to see what happened to Bassil Ally,” who is a member of that society, Cochran said.
Cochran admits he has a “bias” against Macejko and “an agenda because of what [Macejko] did to my partner’s cousin.”
Judge Boyko ruled Feb. 13 that the parties in the case were now free to release materials they received in evidence exchange in the case as long as Social Security numbers and medical information are redacted from them.
The judge gave the parties until today to deliver copies of all sealed documents filed with the court with Social Security numbers and medical information redacted before he unseals them.
While the case was pending, the parties agreed to keep certain documents sealed, but none of them objected to release of the sealed materials now that the case has been settled, provided the necessary redactions were made.
Macejko acknowledged sending Hartup several derogatory text messages concerning Ally at the beginning of 2009.
“Guess who’s starting the new year off right? That’s correct! The POS is “sick!,” Macejko texted Hartup at 7:46 a.m. Jan. 5, 2009.
In his deposition in the case, Hartup said he understood Macejko was using a popular abbreviation to refer to a piece of excrement.
“Hallejuah! It must be the same miraculous power that has healed the prince. We are a truly blessed office,” Macejko texted Hartup at 7:43 a.m. on Jan. 7, 2009.
Asked if he thought those were racial and ethnic slurs against Islamic people, Macejko exclaimed: “Absolutely not!” and said he made those comments in “a moment of frustration” concerning Ally’s absence. “I never discriminated against this guy,” Macejko added.
“I wasn’t raised to hate, and I’m not teaching my kids to hate,” he said. “I treat people equally and fairly every day.”
Hartup acknowledged in his deposition that he had heard Macejko disparagingly refer to Ally on several other occasions, according to a public court filing by Ally.
“That demonstrates lack of maturity to refer to your employees in that derogatory manner. It just shows a lack of temperance,” Gains said.
Judge Boyko wrote in his recent order concerning document unsealing, “Bassil Ally, while employed as a prosecutor with the City of Youngstown, experienced unlawful discrimination and retaliation on the basis of his Muslim faith.”