IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO

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Noel Robertson
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1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO STATE OF OHIO ) ) Case No. CR A Plaintiff, ) ) -vs- ) ) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW THOMAS MICHAEL KEENAN ) (READ ON RECORD) ) ) Defendant. ) Judge John J. Russo: 1. This Court finds Thomas Michael Keenan s Motion to Dismiss the Indictment Against Him with Prejudice must be granted in the interest of justice and fairness. In light of the State of Ohio s egregious prosecutorial misconduct and Brady violations in Keenan s prior two trials, Keenan cannot receive the fair and constitutional trial he is entitled to today. 2. In making this decision, the Court has considered the prior rulings by the Ohio Supreme Court and the Northern District of Ohio, all discovery motions filed by the parties, Keenan s Motion to Dismiss, the State s Brief in Opposition, and the Oral Arguments heard by the Court on August 23, After reviewing all the relevant motions and case law, the Court finds the Eighth District Court of Appeals case, State v. Larkins, to be the instructive, compelling, and controlling case. 4. In Larkins, the State of Ohio appealed the trial court dismissal of a 1986 felony murder indictment against defendant Ronald Larkins. The Eighth District Court Appeals upheld 1

2 the dismissal with prejudice of the case based on the State s discovery violations and found it to be the extraordinary case where the prejudice could not be cured by a new trial. 5. As part of the analysis in Larkins, the Eighth District Court of Appeals refers to the test that was used by the Ohio Supreme Court in State v. Wiles. In Wiles, the Ohio Supreme Court held a trial court has discretion under Crim. R. 16(E)(3) (Presently in 2012 Criminal Rule 16(L)(1)) to determine the appropriate response for failure of a party to disclose material subject to a valid discovery request. To determine whether a trial court has abused its discretion in dealing with Criminal Rule 16 violations, the Appeals Court looks to the following three prong test: 1) the violation was willful; 2) foreknowledge would have benefitted the defendant; and 3) the defendant suffered prejudice as a result of the state s failure to disclose the information. 6. Applying this test, the Court makes the following specific findings of fact as they pertain to this case: 7. As to the first prong, it is without question, based on the egregious history of prosecutorial misconduct and Brady violations outlined in detail by both the Ohio Supreme Court and the District Court in this case the State willfully withheld exculpatory evidence from Keenan and his attorneys. 8. Looking at the second prong, the knowledge of this material prior to trial would have clearly benefitted Keenan s case. 9. It would have allowed for more effective cross examination of witnesses, especially Edward Espinoza, co-defendant, and the alleged sole eyewitness to the crime. 2

3 10. The evidence that Paul Lewis had been indicted for the rape of Christopher Longenecker, that Anthony Klann had some knowledge of this rape, and that Paul Lewis had never been prosecuted for it would have also been beneficial for Keenan. This evidence could have strengthened Keenan s case by establishing a motive of someone other than Keenan for the murder of Anthony Klann. 11. For the same reasons, the evidence that Paul Lewis was the anonymous caller who called police, to identified Klann as the murder victim, and t had information regarding the murder that was not publicly known could have also benefitted Keenan s case. 12. The evidence that the initial responding Detectives believed the murder to have occurred somewhere other than Doan s creek would have allowed a more effective questioning of the police investigation, impeachment of Espinoza, and could have cast doubt on the State s theory of the case. 13. The cassette tape made by Angelo Crimi that may have implicated others in the murder would have again obviously been beneficial to Keenan s case. The disclosure of the existence of this tape and its subsequent disappearance could have held significant impeachment value towards the police and Edward Espinoza. 14. James Lightfoot Russell s relocation request could have been used by Keenan s defense counsel to question the State of Ohio regarding his unavailable status in the second trial. 15. The statements made by the neighbors, Therese Farinacci and the older couple, would have strengthened the initial Detectives conclusion that the murder occurred somewhere other than Doan Creek. It could have also been used to question the thoroughness of the 3

4 police investigation, and Paul Lewis involvement in the crime since the statements were overheard by neighbors near his apartment. 16. It is clear that the exculpatory evidence would have strengthened and been beneficial to Keenan s case as outlined in prong two. 17. Looking at the third and final prong, Keenan has suffered severe prejudice as a result of the State s failure to disclose the exculpatory evidence. 18. Keenan s case is now 24 years removed from the crime. The witnesses would have to testify to detailed issues that took place that long ago, including the date and time of the murder which have never been decisively established 19. The only alleged eyewitness, Edward Espinoza, is deceased. And his testimony is not admissible because he was never able to be cross examined with the newly disclosed exculpatory material. Additionally, Keenan was never able to use the exculpatory evidence to impeach Espinoza. 20. Other witnesses of importance are also deceased including: Det. Timothy Horval, Lee Oliver, Angelo Crimi, and James Lightfoot Russell. None of whom have been able to be cross-examined or confronted with the exculpatory evidence. 21. The Keenan case clearly satisfies the three prong test as outlined by the Ohio Supreme Court in State v. Wiles. As in Larkins, this is also the unique and extraordinary case that the harm done cannot be resolved by a new trial and the case must be dismissed. 22. Further, it is the State s position that the Brady violations have already been sanctioned and the relief ordered by the District Court was for a new trial or for a dismissal by the State. The State is mistaken in this assertion. 4

5 23. The Eighth District Court of Appeals in Larkins and the District Court in this case both ordered a new trial, because the Brady violations were sufficiently material to justify a new trial. The effect of the withheld evidence constitutionally required a new trial. However, neither the Eighth District Court of Appeals nor the District Court addressed the new trial as a sanction against the State of Ohio. 24. The Larkins court goes on to explain, that Criminal Rule 33(D) and O.R.C govern the manner in which a new trial is to be conducted. Criminal Rule 33(D) states that when a new trial is awarded on appeal, the accused shall stand trial upon the charge or charges of which he was convicted. O.R.C states, when a new trial is awarded on appeal, the accused shall stand for trial upon the indictment or information as though there had been no previous trial thereof. 25. Larkins concluded [o]nce a new trial is ordered, matters stood in the same position they did before any trial had been conducted. It follows, that the trial court possesses all authority to reopen discovery or entertain any pretrial motions available at law. 26. Therefore, while the Court is aware that it has the obligation to impose the least severe sanction that is consistent with the purposes of the rules of discovery. The Court finds Keenan s case is the unique and extraordinary case where the prejudice created cannot be cured with a new trial. 27. The Court wants to make clear that this decision is not a reflection on the current team of Assistant Prosecuting Attorneys assigned to this case. They have conducted themselves in a professional and forthcoming manner. 5

6 28. Nor is this a reflection of the Court s opinion on Keenan s guilt or innocence. Instead, it is a decision that is founded in the basic right that our forefathers envisioned for those accused of a crime to be afforded a fair trial free from prejudice and misconduct. 29. Pursuant to the mandate of Larkins, Criminal Rule 16(L)(1) and Criminal Rule 48(B) this Court is left with no other option but to GRANT Defendant Thomas Michael Keenan s Motion to Dismiss the Indictment Against Him with Prejudice. Judge John J. Russo 6

STATE OF OHIO LARRY GRAY

STATE OF OHIO LARRY GRAY [Cite as State v. Gray, 2010-Ohio-5842.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 94282 STATE OF OHIO PLAINTIFF-APPELLEE vs. LARRY GRAY DEFENDANT-APPELLANT