2005-06-27T08:26:00.000-04:00

In Your State: Ohio

The Center's study of criminal appeals from 1970 to the present revealed 441 Ohio cases in which the defendant alleged prosecutorial error or misconduct. In 71, judges ruled a prosecutor's conduct prejudiced the defendant and reversed or remanded the conviction, sentence or indictment. In 16, a dissenting judge or judges thought the prosecutor's conduct warranted reversing or remanding the defendant's conviction, sentence or indictment. Out of all the defendants who alleged misconduct, two later proved their innocence.

Carmen Marino worked as a prosecutor in Cuyahoga County for 30 years before he retired in 2002. He served as chief prosecutor and head of the major trial division. At least 15 Ohio criminal appeals have addressed Marino's conduct. Out of those, judges reversed four defendants' convictions because of Marino's prejudicial trial arguments.

After a jogger found 19-year-old Tony Klann's body floating face down in a creek, the state charged three men, Ed Espinoza, Michael Keenan and Joe D'Ambrosio, with his murder.

"When you start out and you have three people involved in a crime, you're never certain who did what until somebody talks," Marino, the prosecutor on the case, told the Center. "Then you have to take their statement in light of the facts and see who corroborates them."

Espinoza was first to talk. He said it happened while the three of them were with the victim on the bank of a creek. Espinoza said Keenan slit Klann's throat with a Bowie knife. Then as Klann was running into the water to escape, D'Ambrosio followed him to "finish him off." Espinoza said Klann screamed "please don't kill me" as D'Ambrosio ran after him and stabbed him in the chest.

Witnesses established that before the murder, Keenan, Espinoza and D'Ambrosio were intoxicated and driving around town, Espinoza with a baseball bat and D'Ambrosio with a knife, looking for a man named Paul Lewis. They said Lewis had broken into Keenan's car and stolen papers, cocaine and money. While driving around, they came across Klann. Klann knew Lewis, Espinoza said, so the trio picked him up.

Lewis' neighbor told police that the four men came to Lewis' residence in the middle of the night and Espinoza kicked in the door. He said D'Ambrosio was in the car holding a knife on Klann.

Witnesses also established that at some point within a week of the murder, possibly the same day, Espinoza had threatened the victim at a bar. In fact, Espinoza made such a scene that the manager kicked him out.

"Keenan is the real thug here," Marino said. "He was the leader type."

With no eyewitness testimony and a weak case, Marino offered Espinoza a deal. If he testified against D'Ambrosio and Keenan, the state would only charge him with voluntary manslaughter.

"It's an interesting situation, with respect to D'Ambrosio," Marino said. "I think he had known Keenan for only a few weeks before the incident—he's as dumb as a rock."

Marino said he is careful when making deals with co-conspirators and attempts to assure that they are being truthful.

"Espinoza gave his complete statement to the police before I even saw the case," Marino said.

He said if D'Ambrosio would have talked or taken a deal, he would have given him one.

"He thought he could cut the rap," Marino said. "I don't know that he put on any defense whatsoever."

Espinoza testified against D'Ambrosio and Keenan. In 1989, a jury convicted Keenan and sentenced him to death.

"You can be pretty sure if the prosecutor is going for the death penalty, he has the facts to warrant the death penalty," Marino said. "I can't remember a capital case coming back with anything but the death penalty in any case I've tried."

After a three-day trial in 1989, a three-judge panel, including the same judge who presided over Keenan's trial, convicted D'Ambrosio and sentenced him to death.

"They [three-judge panel] listen intently to the facts and take copious notes and go back and convict," Marino said. "They know we're [prosecutors] not waltzing into the courtroom on a wish and a prayer."

Espinoza pleaded guilty and received a reduced sentence of 15 to 75 years. He is now out of prison.

To this day, Espinoza's account of the murder is disputed. Experts now say that Klann could not have screamed because the knife wounds caused two large holes in his trachea.

Marino disagrees.

"If he had been slashed below the larynx he could not scream, but the coroner testified that the slash was above the larynx, which means the sounds he made were coming out of the larynx and out of a hole in his neck," Marino said.

Authorities found no forensic evidence along the creek bank where Espinoza said the murder took place and where the victim would have lost pints of blood. After searching the bank, two detectives who were first on the scene and didn't testify at the trials decided the murder could not have taken place on the creek bank.

Marino said the murder took place on the creek bank, and dismissed the lack of blood.

"There are no major arteries there," Marino said, referring to the Klann's neck wound. "It's not like he stood there for any length of time while he was bleeding—he was pushed into the creek."
In 1993, the Ohio Supreme Court reversed Keenan's conviction because of Marino's "gravely" prejudicial trial arguments and behavior.

"I gave a pretty good closing argument," Marino said. "I took that Bowie knife and stabbed the desk with it."

In the opinion that reversed Keenan's conviction, Justice Thomas Moyer wrote, "Without overwhelming evidence of guilt, we cannot know what the verdict might have been had not the prosecutor clouded the jury's vision with improper tactics."

Marino said it's all just a part of the process.

"This business is highly public," he said. "If you want to do something where no one is going to criticize you, be an accountant."

Keenan was later retried and re-sentenced to death.

D'Ambrosio also alleged on appeal that Marino's conduct, such as improper comments and misleading assertions about Espinoza's credibility, denied him a fair trial. But courts have so far refused to address the claims because D'Ambrosio's defense attorney didn't object to Marino's statements during the trial.

Both Keenan and D'Ambrosio are currently on death row.

In 1982, the Ohio Supreme Court reversed Chester Liberatore's arson conviction due to Marino's "prosecutorial blunders." In the Court's opinion, Justice Clifford Brown said Marino "presented a textbook example of what a closing argument should not be."

"That's all interpretation," Marino said. "You just get up and give a good closing argument—whoever argues best last wins."

In another case, judges reversed George Kelly's conviction because Marino "purposely" offered him a chance to plead guilty to murder "in order to avoid a possible successful appeal."

In May 2002, the state's Eight Circuit Appeals Court upheld Gregory Lott's murder conviction, rejecting evidence suggesting that Marino withheld exculpatory evidence from the defense, namely the victim's initial description of the attacker.

In another two cases, dissenting judges would have reversed the defendants' convictions because of Marino's behavior.

Marino said it's not difficult to win convictions in Ohio, as jurors are predisposed to find defendants guilty because they trust police and prosecutors.

"If the person doesn't take the stand, the jury knows he is guilty," Marino said. "That's my experience."

To read more of the effects of "Harmeless Error" and how it affects not only capital cases, but many others, visit .

HARMFUL ERROR