Thursday, April 29, 1999

Judge to rule on 'misconduct' in prosecution of slaying suspect

The Cincinnati Enquirer

        A judge will decide in the next two weeks whether the man charged with killing former Lincoln Heights Mayor Eugene Jenkins should be set free because of a mistake by prosecutors.

        At a court hearing Wednesday, attorneys for accused killer Edward Smith argued that “prosecutorial misconduct” at his first trial was so severe that it would be unconstitutional to try the case again.

        Mr. Smith was convicted in 1997 of shooting Mr. Jenkins, but the verdict was thrown out last year by an appeals court.

        Defense attorney John Burlew said the misconduct was intentional and should preclude prosecutors from seeking another trial.

        “This does not even pass the smell test,” Mr. Burlew said in Hamilton County Common Pleas Court. “The error was so great that this defendant did not receive a fair trial.”

        Assistant prosecutor Gus Leon, who was rebuked by the appeals court for improper comments, said he made the comments after Mr. Burlew improperly quoted a transcript to the jury.

        “I was angered,” Mr. Leon said. “I was angered and I decided to point it out to the jury.”

        A key issue in the case, which will be decided by Judge Ann Marie Tracey, is whether Mr. Leon intentionally tried to goad Mr. Burlew into asking for a mistrial.

        The prosecutor's intentions are important because the law does not allow prosecutors to force a mistrial by sabotaging a case with improper comments.

        Without such a law, Mr. Burlew said, prosecutors could simply act improperly every time they thought they were going to lose a trial. In theory, the defendant could then face an infinite number of trials for the same offense.

        Mr. Leon, however, said his comments were made in the heat of the moment and not in an attempt to get a mistrial.

        “My intentions were not to goad the defense into moving for a mistrial,” Mr. Leon said. “It was the furthest thing from my mind.”

        If the judge rules against the prosecutors, she could throw out the case against Mr. Smith. If she does not, Mr. Smith would be tried again.

        According to the appeals court, the trouble in the case began during the trial's closing arguments.

        In his arguments, Mr. Leon told jurors that Mr. Burlew tried the entire case “not by evidence, but by his speeches and misrepresentations.”

        He went on to say that the defense attorney was good at “making chicken salad out of chicken — fill in the blank.”

        In its ruling, the Ohio 1st District Court of Appeals called the comments a “personal attack” that tainted the trial.

        Judge Ann Marie Tracey said she would decide the issue by May 12.


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