Wednesday, July 14, 1999
Witnesses vanish; suspect walks
Prosecutors plan to pursue murder case
BY DAN HORN
The Cincinnati Enquirer
James L. Clark walked out of court a free man Tuesday after a judge dismissed murder char ges against him because three star witnesses didn't show up for the trial.
How long Mr. Clark remains free may depend on how long it takes prosecutors to find the witnesses.
Under Ohio law, prosecutors still have about four months to track them down, file new charges against Mr. Clark and bring the case to trial.
“We've got some time left,” said Prosecutor Mike Allen. “We're not going to walk away from this one. It's too serious a case not to pursue it.”
So far, however, prosecutors have been unable to find several of the witnesses they say they need to prove that Mr. Clark fatally wounded his father during a Jan. 19 street fight.
They say the missing witnesses could testify that Mr. Clark fired a gun during the fight and unintentionally struck his father in the jaw.
His father, James Clark Sr., died more than a week later from complications that prosecutors say were the result of his gunshot wound.
Mr. Clark, 21, was scheduled for trial two times previously this year, and both times the case was postponed at the request of prosecutors.
After the most recent delay, Judge Thomas Crush warned assistant prosecutor Steve Tolbert he would not postpone it again.
“I know you gave me a continuance last time,” Mr. Tolbert told the judge Tuesday, “but the bottom line is the state is in a position where we cannot proceed.”
He asked for a third delay, but Judge Crush refused. The judge noted that the prosecu tion had one less witness this time than it did for the last court appearance.
“The witnesses aren't here and, in fact, we get fewer of them every time,” the judge said. “The charges will be dismissed.”
Mr. Clark's attorney, Kenneth Lawson, urged prosecutors to drop the case because it has been traumatic for his client's family.
“We just hope they will let this family live in peace,” Mr. Lawson said. “It's been a tragic case for everybody involved.”
After the judge's ruling, Mr. Clark embraced family members and left the courthouse without comment.
Mr. Tolbert said his office still has about 130 days remaining under Ohio's speedy-trial statute to prosecute the case.
Mr. Allen said that's what he intends to do, provided he can find the witnesses.
“We'll continue to work with law enforcement to secure their appearance,” Mr. Allen said. “Without their testimony, we don't have a case.”
Even before the dismissal Tuesday, Mr. Clark's case was controversial.
He was indicted under a new law that changed the way murder is defined in Ohio, making it easier for prosecutors to seek the most serious charges.
Under the old law, Mr. Clark most likely would have been charged with involuntary manslaughter because he apparently did not intend to shoot his father.
But prosecutors say the new law allows a murder charge because Mr. Clark intended to use violent force against someone. They say it doesn't matter whether he hit his intended target.
Judge Crush declined to throw out the case because Mr. Lawson said the new law is unconstitutional.
The murder charge carries a possible sentence of 20 years to life.
After the dismissal Tuesday, Mr. Allen said he didn't know what charge his office might seek against Mr. Clark if it files a second time.
His first priority, he said, is to find the witnesses.
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