Desmond insubordination alleged


By Peter H. Milliken

milliken@vindy.com

YOUNGSTOWN

The personnel file of Martin P. Desmond, a key longtime Mahoning County assistant criminal prosecutor fired effective Thursday, shows only two prior formal disciplinary actions in his 13 years with the county, both stemming from his alleged insubordination.

Desmond received a three-day unpaid suspension notice in 2009, which was converted into a written warning; and a two-week unpaid suspension in 2013, in which he served one week and forfeited a week’s vacation.

Desmond also had commendation letters in his personnel file, including one from a state pharmacy board agent who praised his drug-crime prosecutions.

County Prosecutor Paul J. Gains, Desmond and Desmond’s lawyer, Ira Mirkin, declined to comment on the contents of Desmond’s personnel file, from which materials were redacted by a Cleveland lawyer working for the county.

After placing Desmond on paid administrative leave March 23, Gains conducted a news conference Wednesday to announce he was firing Desmond from his $78,000-a-year job. Gains said he could no longer trust Desmond to act in the county’s best interests.

Desmond violated office policy by discussing a matter he was no longer handling with people outside the office, including a lawyer, who sued the county in federal court, Gains said.

That lawyer, James Wise, sued the county on behalf of a witness who declined to testify in a murder case, which was later dismissed.

A federal judge has said she will dismiss that suit, which alleged wrongful arrest and malicious prosecution of that witness on charges of tampering with evidence and obstructing justice, which were later dismissed.

The Vindicator requested Desmond’s personnel file last week and received it Wednesday.

The file shows in the 2013 suspension case, Linette Stratford, chief of the civil division in Gains’ office, recalled – in a memo to Gains – Desmond’s reaction in a Feb. 1 meeting of criminal prosecutors when Gains told him he’d no longer be assigned to the drug task force due to lack of funding.

“Atty. Desmond, in a very loud and angry tone, accused Prosecutor Gains and me of ‘screwing up’ the funding for the task force,” Stratford wrote.

Desmond’s behavior “was the most insubordinate display I have witnessed in my 19 years as an assistant prosecutor and supervisor,” Stratford wrote.

“Unfortunately, this latest display confirms my opinion that his prosecutorial skills are greatly outweighed by his potential liability for this office,” Stratford wrote, calling for Desmond’s dismissal.

“We tried not having a task-force prosecutor several years ago, and it was a complete debacle. ... Now, more than ever, we need a task force prosecutor,” Desmond wrote to Gains that year.

“I’m saying these things because I truly care. Regardless of what you may think of me [or what some talking heads may tell you], I am loyal to this office and to you. This is why I am so frustrated,” Desmond added.

The 2009 suspension notice, which was converted to a written warning, alleged Desmond was insubordinate because he issued a court filing opposing a recommendation by Robert E. Bush Jr., then chief of the criminal division in the prosecutor’s office, for a six-year prison term in a plea deal concerning an armed robbery, aggravated burglary, felonious assault and kidnapping case.

“The undersigned did not agree, or authorize, any dismissals or reductions,” Desmond wrote in that filing.

The suspension notice said Gains decided “to forgo termination given Mr. Desmond’s years of service and excellent trial skills, if Mr. Desmond submits a written apology.”

Besides the two suspension notices, there were other more recent memoranda exchanged among prosecutor’s office supervisors concerning Desmond’s behavior.

In a May 8, 2015, memo to Gains, Nicholas E. Modarelli, chief assistant prosecutor, reported a verbal confrontation with Desmond that occurred at the entrance to the county administration building, where the prosecutor’s office is housed.

Desmond said he wasn’t going to attend the weekly office staff meeting, but Modarelli told him his attendance was required, the memo said.

“Nothing happens at those meetings and nothing changes anyway,” Modarelli quoted Desmond as saying.

“He [Desmond] continued to get agitated, using loud, profane language,” and pointing his finger in Modarelli’s direction, Modarelli told Gains.

Desmond did not attend the meeting, and his outburst occurred in the presence of several lawyers, Modarelli said.

“Atty. Desmond showed a total lack of respect for this office, you as the elected officeholder, me as his immediate supervisor and his co-workers by his public and profane behavior,” Modarelli told Gains.

In a Jan. 29, 2016, memorandum, Stratford told Gains that Desmond recently had called her to say that “he would no longer write up the grand jury files because he claimed he did not have time, and it was taking him away from his family.”

She added: “I am recommending holding any discipline in abeyance due to pending cases. But I cannot condone Atty. Desmond’s insubordinate behavior.”

The most glowing commendation presented in Desmond’s personnel file came from George Pavlich, an Ohio State Board of Pharmacy agent, who praised Desmond for “his outstanding and continuous dedication to his duty to protect and serve the citizens of Mahoning County” in a Dec, 16, 2010, letter to Gains.

“Desmond has recognized that diversion of drugs from the legitimate pharmaceutical drug distribution system has been a significant source of supply of drugs to the streets of Mahoning County; thus, he has dedicated much of his time to address this problem with significant results.”

Pavlich praised Desmond for his successful prosecution of a pharmacist that documented “illegal distribution of 15,380 internet prescriptions that dispensed 1,491,171 doses of dangerous drugs through his pharmacy in Youngstown.”

A Hubbard couple wrote to Gains on June 22, 2007, that Desmond had helped them get restitution of money “lost from a dishonest business transaction.”

During the Wednesday news conference, Gains said a computer log showed Desmond used a county computer account to research the civil-law issues raised in the federal lawsuit the very morning it was filed. Gains alleged further that Desmond denied that he did this research.

Wise, however, said the text of that lawsuit was completed before Desmond did the research Dec. 16 and not changed that day, and that Desmond did not share that research with him.

Gains said he had no evidence that Desmond shared his research results with Wise.

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