Published: Wednesday, November 14, 2007
No prosecutor? Case is dismissed!
The prosecutor says he thinks 37 days remain on the speedy-trial clock in this case.
YOUNGSTOWN Citing what he termed a "failure to prosecute," a judge dismissed robbery, felonious assault and domestic violence charges against a Mahoning County jail inmate and ordered him freed.
The judge also ordered an assistant county prosecutor to appear before him to explain why she shouldn't be held in contempt of court for failing to show up for the defendant's jury trial, which was to have begun Tuesday morning.
Judge John M. Durkin of Mahoning County Common Pleas Court dismissed the charges against Kenneth R. Miller, 27, of Martin Luther King Boulevard, and Miller was released from jail Tuesday.
The judge also ordered Natasha Frenchko, assistant county prosecutor, to appear before him at 8:30 a.m. Thursday to show cause why she should not be held in contempt of court for failing to appear at the scheduled start of the trial.
Gina Buccino-Arnaut, another assistant county prosecutor, who stood in for Frenchko on Tuesday, asked that the trial be postponed and told the judge Frenchko was attending a meeting of rape crisis nurses.
Judge Durkin said his office left voice-mail messages for Frenchko on Nov. 5 and again Friday, notifying her of the forthcoming trial date. "Atty. Frenchko, although having been given those messages, has the audacity not to appear herself, ready to proceed on a case in which the defendant sits in the Mahoning County Justice Center ready to proceed," the judge said as jurors waited in the courthouse.
County Prosecutor Paul Gains, however, said recent office moves in the prosecutor's office resulted in the messages being left on the wrong telephone extension and Frenchko not being told by Arnaut until late Friday that the trial was set to begin Tuesday. When Frenchko called the judge's chambers late Friday afternoon to confirm the trial date, she got no answer, Gains said.
Frenchko and another assistant prosecutor were presenting a seminar for the nurses at St. Elizabeth Health Center on how to interview domestic violence and rape victims. Gains called Frenchko an "extremely motivated and dedicated" prosecutor who does excellent work, and Gains said he met with Judge Durkin informally Tuesday to explain what happened.
Miller's lawyer, John Jeffrey Limbian, told the judge he and his client were ready for trial Tuesday morning, and Limbian asked the judge to either start the trial or dismiss the case.
"I'm going to dismiss this case for failure to prosecute," the judge announced, saying he believed the prosecutor's office could appeal the dismissal to the 7th District Court of Appeals.
Judge Durkin told Limbian he was dismissing the case because "today's the date of trial as a result of your client's speedy-trial rights; and, secondly [because of] the actions of the assistant prosecutor for Mahoning County in completely disregarding the notice of jury schedule and trial in this case." Miller never waived his right to a speedy trial, the judge noted.
The judge, Frenchko and Arnaut declined to comment beyond what is in the court record. The alleged crime victim did not respond to a request for comment.
Gains said he would make a decision whether to appeal or ask a grand jury to reindict Miller after he sees an official written judgment entry of dismissal from Judge Durkin. Gains said he hadn't received such an entry as of late Tuesday afternoon.
With limited exceptions, Ohio law requires that defendants in criminal cases be tried within 90 days of their arrest if they're in jail or within 270 days if they're out on bond unless they waive their speedy trial rights. Miller had been jailed since he was alleged to have committed the offenses against the Youngstown woman May 16.
Saying he believes at least 37 days still remain on Miller's speedy-trial clock, Gains said Miller's discharge of a previous defense lawyer and the defense's earlier requests for postponements stopped the clock.
However, Gains said he will issue a memo to his staff saying: "If the latest word from court personnel is that the trial is going forward on a certain date, you will act under that assumption. She assumed it wasn't going forward because she and Limbian hadn't agreed on a date.''
Limbian said late Tuesday that he doesn't recall agreeing to another postponement "because there was a speedy-trial issue."
Gains added: "Natasha should have prepared for trial instead of assuming that the case would be continued [postponed], or at least delayed until the afternoon. That was her fault. ... When she found out on Friday afternoon, she should have immediately issued subpoenas" to witnesses, canceled her appearance at St. Elizabeth and been in Judge Durkin's court Tuesday morning."