Defendant C’Mone Thomas, second from left, confers with her attorney, Tony Meranto, last week during a hearing in her aggravated murder case. Her brother Marquez Thomas, right, talks to his attorney, Lynn Maro.

YOUNGSTOWN — The aggravated murder trial of Marquez D. Thomas, 26, and his sister C’Mone Thomas, 23, was set to begin Monday in Mahoning County Common Pleas Court — but was derailed in a dispute over several filings the defense is supposed to get.

On Wednesday, after a Tuesday hearing at which Judge John Durkin called prosecutors’ actions “inexcusable,” he postponed the trial to Oct. 2.

The Thomases are accused of killing Joseph Addison, 42, on Dec. 30, 2021, at a Tyrell Avenue apartment complex on the city’s West Side and injuring two men and a woman ages 34, 21 and 26, with gunfire.

The legal dispute occurred during a final pretrial hearing where the judge talked with the attorneys about a motion filed by defense attorney Lynn Maro. Maro, who represents Marquez Thomas, asked that the judge sanction the Mahoning County Prosecutor’s Office for not yet providing the defense with certain filings — despite the trial being only six days away.

Durkin set a deadline of July 1 for prosecutors to file a written response to the motion for sanctions against the prosecutor’s office and gave the defense a deadline after that to file a follow-up brief.

The judge plans a hearing at 9 a.m. Monday to discuss setting a new bond amount for the Thomases.

SIMILARITY

The present case is somewhat similar to the situation in which the judge found himself in 2021, when he removed Dawn Cantalamessa, former county assistant prosecutor, from a murder case because of evidence not being turned over timely to the defense. Cantalamessa had been lead prosecutor on many of the county’s most high profile murder cases.

In that case, attorney David Betras, who represented defendant Lavontae Knight, filed a motion asking for Cantalamessa to be removed from the case or for charges to be dismissed against Knight because of late-arriving evidence.

Betras provided documents and other information to show that more than two years went by between the time an eyewitness failed to identify Knight from a photo lineup as being involved in the killing of Josh Donatelli, 26, and when Betras learned about the lineup 10 days before the case was due for trial.

NOT PROVIDED

In the Thomas case, Maro told the judge her client was arraigned in January 2022, and Durkin ordered prosecutors to turn over a bill of particulars — a document providing the specific allegations they intend to prove at trial — Feb. 10, 2022. Prosecutors also have not turned over a witness list and other documents, Maro said.

Rob Andrews, one of two assistant prosecutors working on the case, told Durkin on Tuesday he was planning to provide the bill of particulars later Tuesday and the witness list Wednesday morning.

Andrews said he had just read a motion from attorney Tony Meranto, who represents C’Mone Thomas, at lunchtime Tuesday that asked the judge to prevent prosecutors from using potentially unflattering photos of the Thomases at trial. That motion was filed June 15 — five days earlier.

Andrews asked the judge to give him until “the end of the week to file a (written) response (to the motion) and maybe argue that on Monday.”

A short time later, Maro slammed Andrews’ remark about needing until Friday to respond to the motion, as well as Andrews wanting to conduct an oral argument on the matter the morning of jury selection.

“To say I am frustrated this afternoon is an understatement,” Maro told the judge. “To say he just got attorney Meranto’s (request for photos not be admitted) this afternoon — and now maybe by Friday and by Monday morning we will know if we have to prepare for those photographs or not, it’s not a simple … analysis,” she said.

She added that not having a witness list leaves open the possibility that she and Meranto might be “scrambling” to subpoena Youngstown police officers or 911 operators who might be testifying at the trial “all while we should be reviewing for trial.”

She said the witness list is required by local rules of the court to be turned over to the defense within a week of arraignment. “Here we are six days before trial talking verbally talking about what he thinks is on their list,” she told Durkin.

PROSECUTOR’S RESPONSE

When asked about the allegations by Maro, county Prosecutor Gina DeGenova said all of the evidence prosecutors have in the case was turned over to the defense.

The types of documents Maro is talking about — such as a witness list and bill of particulars — are called “pleadings,” and “those pleadings by oversight were not filed,” DeGenova said. “I’m not going to dispute that, but the content of the pleadings” are not evidence.

“These particular pleadings do not disclose any new information,” DeGenova said. “The information they do provide is really just a condensed version of information (the defense attorneys) already have.”

The prosecutor’s office was required to file them by a certain date, DeGenova said. “The judge is going to look at that and make a decision on that, and in the meantime we are imposing a new policy where we check the files 30 days out (from trial), and we make sure these requests are compiled with,” DeGenova said of her office.

DeGenova said a bill of particulars is “providing a little more detail about a case that maybe the indictment doesn’t provide, but it’s information they already have.”

She said another pleading involved in the Thomas case is a “notice of intent to use evidence,” which DGenova said “is basically us saying, ‘You know the evidence you already have? We’re going to use that at trial.'”

The witness list “is essentially just a document that identifies the people we might call as witnesses. They are the same names that appear in police reports that the defense has.”

DeGenova said no disciplinary action has been taken against the person who failed to get those pleadings filed timely.

MARO’S CLIENT

Maro, who announced her intent to run for Mahoning County prosecutor in 2024, said her client, Marquez Thomas, has been in jail since January 2022 awaiting trial. Maro said she should not have to ask for her client’s trial to be postponed because of failure of prosecutors to turn over filings.

“I, as his attorney, who does not want to provide ineffective assistance of counsel, should not six days before trial be wondering who the government is going to call (as witnesses) while I have to scramble, while I have to prepare for cross examinations. But I certainly shouldn’t be asking for a continuance when my client has been sitting (in jail) since January of 2022.”

Andrews told Durkin a witness list is not a list of the people who will testify at the trial, only a list of people who might testify. He said he had “basically given (the defense) a verbal witness list” of who might testify, so the defense “is aware of all of our potential witnesses.” Andrews added, “Has the proper documentation been filed up to this point? No it has not.”

JUDGE

CONCERNED

The judge noted that it is apparent that Andrews was accepting blame for mistakes made by someone else. But the judge added: “It is — and I will say it — inexcusable that a bill of particulars, a reply to a notice of intent to use evidence and a witness list has not been provided to the defense, and we are six days from trial.”

The judge said, ” … the defense may be aware of the state’s theory of the case and probably who will be called as a witness. But the fact that it has not been formalized by way of pleading is problematic,” he said.

“Candidly, sometimes it might take setting off some dynamite to get somebody’s attention,” the judge said of the failings of prosecutors.

The judge then said he agreed with Maro’s contention that not providing a witness list is significant because “it is absolutely true that time could be better spent on things rather than scrambling at the last minute to determine” whether a witness needs to be issued a subpoena.

The judge asked Maro and Meranto whether they thought they could still be prepared for trial Monday despite the delays in getting the filings. Maro did not appear to answer directly, and the judge took the discussion into his chambers for a short, private discussion with the attorneys.

When they returned to the courtroom, Andrews said he would deliver the witness list to the defense Tuesday night, though the criminal histories of some of the witnesses might not be included.

The judge said he would wait to rule on sanctions against the prosecutor’s office. By 3 p.m. Tuesday, Andrews had filed a bill of particulars, and by Wednesday morning, he had submitted the state’s notice of intent to use evidence and witness list.