By Peter H. Milliken
Dismissal of charges against nine defendants in five homicide cases since January 2009 by Mahoning County Prosecutor Paul J. Gains and his staff has emerged as a major campaign issue of Gains’ challenger, Jay Macejko.
Gains is seeking a fifth consecutive four-year term as county prosecutor, and Macejko, Youngstown city prosecutor, seeks to oust him from office in Tuesday’s Democratic primary.
“The dismissals are disturbing,” Macejko said. “When you see cases involving the most violent of all offenders habitually being dismissed by a prosecutor’s office, that should be a red flag for anyone that there’s a problem in that office,” Macejko said.
“We’ve got only one case that was dismissed due to a mistake by this office,” Gains said, referring to charges against Marcel Roberson and Alan M. Johnson in the Dec. 11, 2009, shooting death of Kevin Hart.
That case was dismissed because the prosecution failed to provide the defense with a video statement in the pretrial evidence exchange, but charges could be filed again if new evidence emerges, Gains added.
Except for Roberson and Johnson, where a key item of evidence wasn’t shared, the dismissals were due to a lack of evidence, Gains said.
“We can only deal with the evidence that the police have gathered for us and the evidence that we may find as we prepare for trial,” Gains said.
In last week’s live, one-hour debate on 21 WFMJ-TV, Macejko repeatedly hammered Gains on the dismissals in Macejko’s closing statement.
Near the end of the debate, Macejko asked Gains if he could name the victims in each of the five cases and explain why the charges against the suspects were dropped.
Gains said he could not immediately recite the list or the explanations, saying his office handles about 1,700 criminal cases annually, and his time is heavily committed to administrative and budgetary tasks.
Macejko said Gains is at fault for the 3,018 county jail bed days occupied by the nine defendants, at the rate of $80 per inmate per day, which cost the county $241,440.
“Many of these issues that led up to the dismissals are things that should have been caught much sooner,” Macejko said in an interview. “If there’s a problem with the case, it’s up to the prosecutor to make sure that he’s on top of these things, and clearly, that wasn’t happening.
“So, now, you have the expense of nearly a quarter of a million dollars for nine suspects who never really saw a day in court,” Macejko said.
Gains said two of the dismissals resulted from witness recantations, and police, who had initially interviewed these witnesses, did not know they’d be recanting until they actually recanted in court hearings.
“We cannot keep people in jail where we do not have the evidence to convict,” Gains added. Gains also said the courts, not prosecutors, control the scheduling of hearings and set trial dates.
Two days after the debate, Macejko and Gains separately supplied to The Vindicator lists of homicide suspects whose charges were dropped and victims in each case.
“It is appalling that the current county prosecutor could not even come up with one victim’s name,” in the live debate, Macejko said. “The prosecutor’s business is to know criminal cases, and certainly, when a prosecutor is dismissing murder cases, you would think that he would know what’s going on and why it happened.”
Other than in the Roberson and Johnson case, however, Macejko said he could not recite what, specifically, he believes Gains and his staff did wrong in each case.
“I got thrown off when he said nine” in the live debate, Gains recalled, noting that there were nine defendants, whose charges were dismissed, but only five victims.
All but one of the dismissals occurred in 2009, and the most recent dismissal, that of Roberson and Johnson, was in September 2011.
Gains dismissed a charge of complicity to murder against Johnathan Dent in March 2009 in the July 8, 2007, shooting death of William Burr, 27, of East Midlothian Boulevard, outside a South Avenue pizza shop, in what the prosecution said was a drug deal gone bad.
Gains said most of the evidence was against co-defendant Dion Weatherspoon, 23, of Hilton Avenue, who was acquitted by a jury of aggravated murder and a lesser included murder charge.
Gains added that the only evidence Dent was with Weatherspoon 45 minutes to an hour before that shooting was from Dent’s girlfriend.
“We didn’t believe we would secure a guilty verdict. That’s why that case was dismissed,” after Weatherspoon was acquitted, Gains explained.
“If additional evidence comes forward, he can always be recharged” in that homicide, Gains said, referring to Dent.
Weatherspoon cannot be recharged because of the constitutional prohibition against double jeopardy, Gains added.
Also in March 2009, an aggravated murder charge was dismissed against Melvin E. Johnson Jr., 24, of McClure Avenue, in the Nov. 15, 2007, shooting death of Marvin L. Hodges, 29, in Campbell.
Robert E. Bush Jr., then an assistant county prosecutor, said the shooting followed an argument over an incident in which a pedestrian was nearly hit by a car.
The sole eyewitness recanted his statement during an evidentiary hearing and said he never identified Johnson and never said he saw the shooting, Gains recalled, adding there was no other evidence against Johnson. Charges could be refiled if new evidence emerges, Gains said.
In another early 2009 dismissal in another Campbell case, complicity to murder charges were dropped against Dominique Lucky, 23, and Christopher J. Hill, 29, in the shooting death of Diana Noble, during what the prosecution said was a drug transaction.
Noble, 39, was shot in the abdomen at the Kirwan Homes in Campbell on Feb. 22, 2008, but, unaware that she had been shot, she drove to her Howland home, where she died of internal bleeding, Gains said.
Police were not aware of the shooting until the next day and could not find the crime scene, Gains noted.
“The only witness was a homeless person of questionable credibility,” Gains said. The shooting occurred “in a deserted area of the projects,” Gains added.
Tyrell Ravnell, 22, of Halleck Street, was originally charged with murder in this case, but later pleaded guilty to the misdemeanor offense of negligent homicide and a felony charge of improperly handling a gun in a motor vehicle, for which he was given a combined sentence of 304 days in jail.
In July 2009, Gains’ office dismissed murder charges against Dionne Dawson, 29, of Brooklyn Avenue, and his brother, Dewon Dawson, 28, of West Myrtle Avenue, and Gerald Hardaway, 30, of Ridge Avenue, in the Nov. 12, 2008, shooting death of Billy O. McGeorge, 32, of Parkwood Avenue, on West Marion Avenue, which the prosecution said stemmed from a show of disrespect.
The sole eyewitness recanted during a bond-reduction hearing, said Dawn Cantalamessa, an assistant county prosecutor.
Charges could be refiled in this case if new evidence emerges, said Rebecca Doherty, chief of the criminal division in Gains’ office.
In the most recent case, murder charges were dropped against Roberson, 30, of Tod Lane, and Johnson, 24, of Elm Street, in the shooting death of Hart, 38, of Zents Avenue, at Logan and Zents avenues, for which Gains said the motive is unknown.
That dismissal occurred because Gains’ office failed to provide to the defense in the pretrial evidence exchange a video statement from a key witness, who said she heard one of the defendants make an incriminating statement, but who did not actually see the shooting, Gains acknowledged.