BY DAN HORN
The Cincinnati Enquirer
Edward Smith
|
In a scathing decision Friday, a state appeals court threw out the murder conviction of the man charged with killing former Lincoln Heights Mayor Eugene Jenkins.
The Ohio First District Court of Appeals ruled that the convicted killer, Edward Smith, did not get a fair trial because the jury's verdict was tainted by "prosecutorial misconduct."
In the court's opinion, written by Judge Rupert Doan, prosecutors are accused of improperly suggesting that Mr. Smith did not testify at his trial because he did not have an alibi.
It also criticized assistant prosecutor Gus Leon for making personal comments against defense attorney John Burlew.
"This personal attack was completely improper and rises to the level of constitutional error," Judge Doan wrote in his decision. "We are intuitively and legally repulsed by the prosecutor's purposeful attack."
The offending statement was made during the prosecution's closing arguments, when Mr. Leon told jurors that Mr. Burlew tried the entire case "not by evidence, but by his speeches and misrepresentations." Mr. Leon went on to say that the defense attorney was good at "making chicken salad out of chicken -- fill in the blank."
Although Hamilton County Common Pleas Judge Melba Marsh promptly ordered Mr. Leon to apologize, the appeals court concluded the damage already was done.
"The effect on the jury of this personal denigrating attack . . . was akin to invasive radioactive fallout that could not be totally eradicated," Judge Doan wrote.
Prosecutor Joseph Deters declined to comment on the court's ruling and would not say whether he has decided to appeal the decision to the Ohio Supreme Court. If he does, it could take the high court several months to review the case and issue a ruling.
Until then, Mr. Smith would continue to serve his prison sentence of 20 years to life.
Mr. Smith was arrested about two weeks after Mr. Jenkins was found shot to death in the driver's seat of his truck on Dec. 27, 1996. Prosecutors said Mr. Smith, who performed maintenance work for Mr. Jenkins, killed him because he thought he was being underpaid.
A witness later said Mr. Smith was in the area at the time of the shooting, and police said they found one of Mr. Smith's keys at the scene of the murder. Mr. Burlew said the witness identification was unreliable and his client was innocent.
He said the appeals court ruling means Mr. Smith is entitled to a new trial unless the Supreme Court reverses the decision.
But if the ruling stands, Mr. Burlew said, he also is prepared to argue that Mr. Smith should be released, because misconduct by the prosecutors bars them from taking the case to court again. "If the prosecutor does something totally outrageous, in some situations, that could prohibit them from starting over," he said.
No matter what happens next, Mr. Burlew said, the ruling was "the right thing to do."
"The state went way over the line and the court of appeals agreed," he said.
A three-judge panel of the court voted 2-1 to reverse the conviction, with Judge Howard Sundermann Jr. dissenting. Judge Marianna Brown Bettman concurred with Judge Doan.
The decision is the latest of several recent rulings that have scolded prosecutors for their courtroom performance. Although Mr. Deters would not discuss Mr. Smith's case, he has been critical of past rulings.
In his dissent, Judge Sundermann agreed that prosecutors acted improperly but said the conviction was supported by "overwhelming" evidence.
"I am unable to conclude, as the majority does, that Smith was prejudiced by these improper comments," the judge wrote.
New murder trial could devastate city
