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Assistant prosecutor ‘takes Fifth’

Civil case addressed in court during murder hearing

YOUNGSTOWN — The ongoing legal battle between former Mahoning County Assistant Prosecutor Martin Desmond and Prosecutor Paul Gains spilled over into an aggravated murder case last week, when defense attorney David Betras suggested the plight of current Assistant Prosecutor Michael Rich is indicative of problems in Gains’ office.

Rich has invoked his Fifth Amendment rights against self-incrimination regarding the civil case Desmond filed against Gains.

“Something’s going on in that office. I don’t know what it is, and I don’t particularly care what it is, but my client is getting ripped up in the machinery of what is going on in that office,” Betras said regarding client Lavontae Knight.

The remarks came in a hearing Betras requested to ask that aggravated murder charges against Knight be dismissed, tied to the killing of Trevice Harris and wounding of a woman with him Dec. 20, 2018, on the South Side. Betras argued former Assistant Prosecutor Dawn Cantalamessa “sat on” evidence possibly helpful to the defense, resulting in the evidence not making it to Betras until two weeks before the case was supposed to go to trial.

Judge John Durkin of Mahoning County Common Pleas Court did not dismiss the charges, but he expressed concern that in “far too many cases” evidence helpful to the defense was turned over to the defense late because prosecutors claimed not to know it existed.

The same thing happened in another case last summer, also involving Cantalamessa, and Durkin dismissed Cantalamessa from the case. She later resigned from the prosecutor’s office, took a prosecutor job in Ashtabula County and now seeks a Trumbull County Common Pleas judgeship.

But as part of Betras’ argument, he mentioned one of the assistant prosecutors handling the Knight case, as well as another Knight aggravated murder case, is Rich — who “took the Fifth Amendment” last October regarding the civil case Desmond filed against Gains.

Desmond and Gains have been mired in civil litigation since Desmond sued Gains in 2017 over his firing. Desmond also appealed his termination to the Ohio State Personnel Board of Review. Both cases are pending.

‘THAT’S CRAZY’

Betras stated during last week’s hearing that Rich wouldn’t testify in the civil case regarding the actions of Cantalamessa.

“He took the Fifth Amendment when they wanted to ask him questions about Dawn — a prosecutor taking the Fifth about this case? That’s crazy,” Betras said.

Rich stood up at that point and protested.

“Judge, this is completely irrelevant. He has no idea what he is talking about,” Rich said.

Attorney John Shultz was attending the hearing and stood up to advise the judge that he is Rich’s attorney, and accused Betras of trying to “cloud a situation where my client is asserting his Fifth Amendment right in an unrelated civil matter.”

The judge said he agreed that Rich’s Fifth Amendment issue was not relevant to the hearing.

According to the Cornell Law School Legal Information Institute, the Fifth Amendment of the Constitution “protects a person from being compelled to incriminate oneself.” Observers have suggested it is exceptionally rare to find an assistant prosecutor invoking Fifth Amendment rights.

A document filed by Desmond’s attorneys Feb. 18 in the common pleas court civil case involving Desmond and Gains indicates that Rich testified in 2019 in the Desmond-Gains litigation and was represented by an attorney.

But on Oct. 11, 2021, Rich invoked the Fifth Amendment in refusing to be questioned at an Oct. 27, 2021, hearing on the Desmond-Gains dispute at the State Personnel Board of Review, or SPBR, in Columbus.

Rich invoked his Fifth Amendment rights in an affidavit, which states that he chose to remain silent after reading the “topics” that he was going to be asked to testify about in the SPBR case, which resumes March 23 in Columbus.

“I invoke my Fifth Amendment privilege against self-incrimination regarding those designated topics and request that this affidavit be used instead of me having to invoke my privilege live and in person,” the affidavit states.

When asked later Tuesday about the issue, Shultz said he believed that one issue Desmond’s lawyers would have asked about involves things that happened in one or more of the Knight cases.

He noted that Desmond was in the courtroom Tuesday for the hearing, as was an FBI agent.

“Given the nature of those circumstances, it’s, ‘Hey, I’d rather be safe than sorry’, because I don’t know what Marty is going to allege next,” Shultz said. “He can do whatever he wants as far as directing allegations at Paul Gains, but Mike Rich unfortunately got caught in the crossfire.”

Shultz added, “It’s an unfortunate and uncomfortable situation for Mike, and I don’t want to subject Mike as a client and a friend to any more stress or unfavorable inferences than are necessary, so that’s why I thought I would nip it in the bud by asserting the Fifth Amendment.”

When reached by telephone on Thursday, Rich deferred to Schultz.

‘I FEEL BAD’

Last July, Durkin removed Cantalamessa from Knight’s other murder case, which involves the Oct. 25, 2018, killing of Josh Donatelli, 26, at Donatelli’s home on Imperial Street on the West Side. The judge said Cantalamessa showed a “careless indifference to ascertaining the truth” and made a false statement to the court in the Knight-Donatelli case.

During Tuesday’s hearing, Betras said he was sorry for bringing up Rich’s name.

“I feel bad for Mike Rich, a young lawyer, caught in the crosshairs of this stuff,” Betras said. “I do not mean to disparage him at all. And if I did, I certainly apologize to him in open court.”

Betras said Rich was placed in a position of knowing that Cantalamessa was lying to Durkin in the case from which Cantalamessa was removed.

“He didn’t know what to do. His supervisor (Cantalamessa) was lying to the court. What do you do? What is he supposed to do? Call out a supervisor, potentially get fired?”

As for Cantalamessa, when asked late this week about the issues Betras has raised, she said she was not lying to Durkin and she never was Michael Rich’s supervisor.

“He gets everything wrong,” she said of Betras. “He gets the facts of the case wrong. He gets what happened in the case wrong. There were so many things he said wrong in (the summer) that he has never been called out on.”

Cantalamessa said the statement that has been called a “false statement of fact” was her “arguing the evidence. The evidence at the time was just (Knight’s) statement to the police.” She said the information that has been called a “false statement of fact” was the truth if only “evidence” is considered, which is what she was arguing.

Cantalamessa said Durkin knew the context of what the judge later called a “false statement of fact.”

She said Betras’ attempt last month to get Knight’s charges dismissed were an attempt to “try his case in the press” and Betras’ “customary bullying tactics to defame me. Moreover, because I am running for judge in Trumbull County, he is trying to interject himself into county politics.”

Cantalamessa said earlier that she didn’t understand why she was blamed last month for not turning over evidence when she has been gone from the Mahoning County Prosecutor’s Office since late last summer.

When Gains was asked after Tuesday’s hearing about Rich taking the Fifth Amendment, he said: “I have no idea why he did that. I have no knowledge of any crimes (involving him).”

Gains added, “I didn’t even know he took the Fifth until last week. I have no idea what the questions were or anything else.”

Gains said he sees no reason anyone in his office would need to assert the Fifth Amendment regarding the Desmond lawsuit: “We committed no crimes here.”

Gains said he “unequivocally” denies the allegations Desmond has made in civil filings that Gains or anyone in his office engaged in criminal conduct.

Gains said he does not know what topics Rich was going to be asked about.

‘MISCONDUCT’

Desmond and one of his attorneys, Subodh Chandra, were asked Wednesday what type of questions Rich would have gotten. Chandra said Rich would have been asked about “misconduct by Dawn Cantalamessa, himself and others in the prosecutor’s office regarding violations of defendants’ constitutional rights.”

Cases Rich would have been asked about include the two Lavontae Knight murder cases and a case involving Dominic Modarelli, Desmond and Chandra said. Modarelli recently asked for expungement of records in a criminal case Desmond discussed in detail when Desmond ran against Gains for prosecutor in the fall of 2020. The expungement request is pending.

Rich already was asked in 2019 about the Modarelli case during depositions in the Desmond-Gains lawsuit.

Desmond has argued Gains should not have had Rich handle a 2018 hearing in the Modarelli criminal case because Modarelli is a second cousin to another assistant county prosecutor, Nicholas Modarelli.

Attorneys from outside of the county prosecutor’s office were appointed to handle every other phase of the case until 2018, when Dominic Modarelli asked to withdraw his 2007 guilty plea to felonious assault. At a hearing in Mahoning County Common Pleas Court, Rich told Judge R. Scott Krichbaum that the prosecutor’s office opposed allowing Dominic Modarelli to rescind his guilty plea. The judge took the matter under advisement.

At another hearing several weeks later, Krichbaum noted the victim had been seriously injured. Rich said the victim’s father, an Austintown policeman, now indicated the victim “wants it to be done with.” Krichbaum allowed Dominic Modarelli to rescind his 2007 guilty plea. Dominic Modarelli then pleaded guilty to menacing, a low-level misdemeanor. He filed a motion Jan. 28 asking Krichbaum to seal records in his case.

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