By joe gorman
Judge Maureen Sweeney of Mahoning County Common Pleas Court called the Youngstown Police Department’s handling of a cellphone in the murder case against Paul Brown “extremely troubling” as she dismissed a murder charge after a one-hour hearing Monday.
At issue is a switched SIM card in a cellphone. That led to the murder charge being dismissed in the May 2009 East Side homicide on a motion filed by Brown’s attorney, Tony Meranto.
Brown, 35, will be released from the Mahoning County jail, where he has been since he was arrested shortly after Jackson’s death May 25, 2009, but he still is finishing a 71-month prison sentence he was given in November 2009 for being a felon in possession of a firearm. The charge stems from Brown’s possessing a gun when police arrested him in Jackson’s death.
The cellphone police took from Brown the night of the shooting had a different card when it was submitted for testing.
It contained a cellphone message Brown told detectives he got from another person that could have cleared him, Meranto argued. Because the original card was missing, investigators could not retrieve the message from Brown’s phone.
Richard Rococi, a computer specialist who was appointed to examine the phone, testified in the hearing Monday that the phone could only work with the card with which it was provided. He said the card that was in the phone at the time he examined it was not the original card.
“The SIM card that was in that phone did not operate that phone,” Rococi said.
Rococi said a SIM card is a card in a cellphone that has a series of numbers on it that connects the phone to a network.
He said he could tell the cards had been switched because the card in the phone had an identifying number different from the card with which the phone was issued.
Judge Sweeney said that while it cannot be determined how the cards were switched, the fact that they were was enough to get the charge dismissed.
“The court cannot speculate as to how the SIM card got switched,” Judge Sweeney wrote. “However, the court finds the card was switched while the phone was in police custody. The court finds this action an act of conscious wrongdoing which cannot be overlooked.”
Assistant Prosecutor Rob Andrews did object to Sweeney’s labeling Rococi as an expert witness, and he got Rococi to admit on cross examination that it could be possible for the card to fall out if the phone were dropped. Rococi said, however, someone would have to take the phone apart and take the battery out to get to the card in order to take it out and replace it.
Detective Sgt. Pat Kelly testified that under the department’s policy for handling evidence, once evidence is bagged and stored it is in a locker that investigators do not have access to. Only the officer who handles evidence in the records room can retrieve evidence, Kelly said. Kelly was the assistant detective on the case, but he said as the assistant he normally works at the behest of the lead investigator and takes direction from them.
Lt. John Kelty, lead investigator on the case, said he never took the phone out of evidence once it was stored, and he said he never tried to get it.
Judge Sweeney wrote in her entry that the issue of the phone came up when evidence was examined for Brown’s second trial and it was discovered that the evidence bag holding the phone was broken and resealed with tape.
Andrews declined to comment, as did Police Chief Rod Foley. He said through a spokeswoman he wanted a chance to read Judge Sweeney’s ruling first.
In January 2012, Brown went on trial for Jackson’s death, but the trial was halted shortly after it started because of a police report not provided to Meranto that he did not know about until the trial began. Judge Sweeney granted a mistrial in that case.
Meranto said the judge’s ruling shows how the checks and balances between different branches of government are supposed to work.
“This is the best example we have of our government at work,” Meranto said. “There were some errors made and the judicial branch corrected it.”
In his motion, Meranto had called for someone to investigate the police department’s conduct in the case. He said Monday he hopes the department itself will conduct an investigation.