Desmond vs. Gains run-in hits new glitch
YOUNGSTOWN — The long-running dispute between Mahoning County Prosecutor Paul Gains and former assistant prosecutor Martin Desmond — who alleged office wrongdoing, got fired and wants his job back plus money — has hit another snag.
Desmond alleges Gains fired him in retaliation for making a report under the Ohio whistleblower’s statute.
The matter was postponed in late October during a hearing before the State Personnel Board of Review’s administrative law judge.
An appeals court granted Desmond the right to have the SPBR again hear the case of whether Gains fired Desmond for legitimate reasons in 2017 or whether the termination came because Desmond tried to expose misconduct within the prosecutor’s office.
WHAT IT’S ABOUT
The report Desmond made, according to his lawsuit, was telling Gains that another assistant prosecutor, Dawn Cantalamessa, had illegally filed charges of tampering with evidence and obstruction of justice against Kalilo Robinson, a witness in a murder case, allegedly to intimidate Robinson into testifying. The charges against Robinson were dismissed, but Robinson’s lawyer filed a federal civil rights lawsuit over the issue. That suit later was dismissed.
At an April 2017 news conference, Gains said he fired Desmond for violating office policy by discussing a matter involving another assistant prosecutor’s case with people outside the office, including the lawyer who filed the civil rights lawsuit.
Desmond’s lawsuit alleged that Cantalamessa wrongly had Robinson indicted based on Robinson’s invoking of his Fifth Amendment privilege against self incrimination and kept Robinson detained “even after the case against him was dismissed and misrepresented to a common pleas court judge that Robinson was a flight risk, thus keeping him detained even further.”
Desmond appealed his termination in a civil suit that remains pending in Mahoning County Common Pleas Court. That suit asks the court to reinstate Desmond to his job, give him back pay and award him punitive damages and attorneys fees and compensation for economic and noneconomic damages such as mental anguish and humiliation.
Desmond also appealed his termination to the SPBR, which dismissed the appeal. Its reason was that the facts of his case did not provide Desmond protection under the Ohio whistleblower statute.
In October 2019, however, the three judges of the Ohio 6th District Court of Appeals in Toledo, sitting by assignment from the Ohio Supreme Court, overturned that decision — siding with Desmond and sending the case back to the SPBR to consider again.
Desmond’s initial filings with the SPBR in May 2017 asked that his termination be overturned.
The SPBR hearing was open to the public and took place in Columbus Oct. 27 and 28 at the SPBR offices. Hearing officer Raymond Geis suspended the proceedings after an issue arose over whether certain testimony was permissible. Geis ordered that the hearing should resume sometime in early 2022. No new hearing date has been set.
The SPBR hearing featured testimony from Gains, his chief assistant, Lynette Stratford, and attorney Dan Kasaris, an assistant Ohio attorney general who has prosecuted cases many times in Mahoning County.
Kasaris testified that his superiors assigned him in fall 2016 to investigate allegations against a local defense attorney. As part of that case, Kasaris met with Desmond, and Desmond told Kasaris he believed improprieties were taking place in the Mahoning County Prosecutor’s office, Kasaris testified.
Kasaris said some of Desmond’s allegations pertained to the 2012 Democratic Party primary election for Mahoning County prosecutor between Gains and attorney Jay Macejko.
Desmond told Kasaris the election was “the most corrupt in Mahoning County history,” Kasaris testified, according to a recording of the hours-long hearings obtained by The Vindicator.
Also during Oct. 28 testimony, Gains said he met with Kasaris in the fall of 2016. Kasaris said Desmond told him about alleged misconduct by an assistant prosecutor involving the 2012 primary election and other issues.
“Mr. Desmond was opining to (Kasaris) this theory that were was this cabal of attorneys that I would not go after them or prosecute them, that I was protecting them and that if (Desmond) could get to” a specified local attorney, it “could break this thing wide open or something along those lines,” Gains testified.
Gains said the information from Kasaris made Gains believe he could no longer trust Desmond’s judgment.
“I couldn’t trust his judgment because it seemed he was seeing crimes that just didn’t exist, and that troubled me deeply,” Gains said, adding that in the 24 years Gains he has been prosecutor he had never fired an assistant prosecutor before Desmond.
Gains also testified that he found evidence that Desmond was communicating with the attorney for Robinson and that Desmond had talked with a woman from the attorney general’s office regarding what Desmond viewed to be improper or illegal conduct in the prosecutor’s office.
Gains also said he found that Cantalamessa’s actions in the Robinson case were proper.
Kasaris also testified about allegedly improper actions by another assistant prosecutor, but that triggered questions among the lawyers and Geis about whether the issue was off limits because of the order of a federal judge in a separate case.
Desmond told hearing officer Geis that this was the first time Gains ever argued information that came from Kasaris was a reason why Gains fired Desmond.
Desmond is serving as one of his own attorneys in the SPBR case, along with attorney Subodh Chandra and Patrick Haney of Cleveland.
Attorney Todd Raskin of Cleveland, who represents Gains, told Geis that if Kasaris were allowed to resume his testimony, Kasaris would have said he thought Desmond’s comments about illegal activities happening in the prosecutor’s office were “made-up stuff. And he will testify that Mr. Desmond accused Mr. Gains of a very serious crime.”
Geis took a recess to consider the ramifications of the federal judge’s order in the separate case on his proceedings.
When Geis returned, he announced that the hearing would be suspended and will resume sometime in early 2022.
In opening statements in the SPBR hearing, Raskin, Gains’ attorney, said what led to Desmond’s termination was insubordination — “quitting” his assignment to handle grand jury indictments, “acts of disrespect to supervisors and co-workers” and a “downward spiral” of behaviors in 2016, including issues related to Robinson.
Among them was discussing his belief with people outside of the prosecutor’s office that Cantalamessa violated Robinson’s civil rights.
“He was untrustworthy, and he violated his duty of loyalty” to the prosecutor’s office, Raskin said.
Chandra, in his opening statement said, “Martin Desmond was fired because he was a whistleblower.”
Chandra said the hearing would demonstrate this by showing “shifting explanations” Gains has given for firing Desmond and the different treatment Desmond received from Gains than other employees received for alleged misconduct.
“What you are going to see is some of the most horrific constitutional civil rights violations being undertaken by prosecutors in this office as a matter of habit, as a matter of serial misconduct … ,” Chandra said in the hearing. “Marty Desmond is speaking up about that. He is the one who pays a price in the end.”