Akron Beacon Journal, 16May1999

AKRON BEACON JOUNAL 

Sunday, May 16, 1999
By Bob Paynter, Beacon Journal staff writer

Memo: JUSTICE FOR ALL?; See related stories / Today: Summit County prosecutors are pursuing felony cases more aggressively than ever. Tomorrow: Marked shifts in felony charges from 1995 to 1998 don't appear to correspond with shifts in crime patterns.

Caption: 1- & 2- Defense attorney Andrew Kinder, shown working in his law office in downtown Akron, says client Reail Peace Jr. should never have been charged with burglary. At left is the East Buchtel Avenue home Peace entered after fleeing from three men. Peace was acquitted. / 3- Defense attorney Michael George says Summit County's direct indictment program has produced a number of "goofy, stupid cases." / 4- Mary Margaret Rowlands and Iman G. Taylor appear in Summit County Common Pleas Court last month for a probation review. Last year he pleaded guilty to a misdemeanor after being indicted on three felonies.

Reail Peace Jr. hadn't exactly qualified as a model citizen during his first 41 years, despite the tranquillity his name implies.

As of May 14, 1998, Peace had managed to acquire two felony convictions in the previous four years -- for domestic violence and drug abuse.

Officially homeless, he had spent much of the previous evening in the shadows of Akron's infamous Grace Park, pursuing experiences not likely to recommend him as a role model for Akron's youth.

Still, it's hard to see how Peace's misadventures early that spring morning on East Buchtel Avenue -- transgressions that Akron police on the scene apparently didn't even consider worthy of arrest -- could justify saddling him with yet another felony conviction and burdening taxpayers with up to $27,000 in costs to send him to prison for as much as a year and a half.

But that's exactly what Summit County prosecutors seemed determined to do, even though records show that Peace had harmed no one but himself, had stolen nothing and had done no damage (other than breaking a window, which he offered to replace) that couldn't be undone with a bucket of warm water and some Spic and Span.

In fact, the dogged prosecution of Peace last summer on burglary charges appears to bear little relation to the war on crime or the defense of public safety.

But it does illustrate a trend in recent Summit County felony prosecutions.

An Akron Beacon Journal analysis of Summit County Common Pleas Court data suggests that over the last several years, prosecutors have become less selective in choosing which cases to prosecute as felonies, lowering the bar on the kinds of behavior that could lead to serious time behind bars.

At the same time, prosecutors have pursued those cases more aggressively than ever before.

One result, according to defense attorneys and judges alike, has been a noticeable increase in the number of weak, low-wattage felony prosecutions that have clogged already overcrowded case dockets and strained the efficiency of local justice.

And with the prosecutorial net being cast wider and drawn in tighter, the likelihood also has grown that the not guilty -- or the not guilty of much -- are getting increasingly hard-nosed treatment in the Summit County Courthouse, with the potential for injustice increasing as well.

Because official findings of guilt are determined almost exclusively through plea bargains -- often without the quality of evidence ever being evaluated by a judge or a jury -- it's nearly impossible to determine how frequently injustices actually do occur.

They are almost certainly in the extreme minority. Even those most critical of prosecutorial practices estimate that well over 90 percent of the defendants ushered through the county courthouse each year have earned the right to be there in one way or another.

But in a system that handles roughly 3,700 criminal cases a year, even a small percentage of marginal or careless prosecutions can seriously affect hundreds of residents and their families.

"It's scary," said former prosecutor Michael George, now a defense attorney, of the way prosecutors have used the power at their disposal. "It's been wielded so sloppily in recent years."

George and other critics blame much of the recent influx of questionable cases on a cost-saving initiative called the direct indictment program. It was introduced in mid-1996 by Maureen O'Connor, then the Summit County prosecutor, in what she now describes as an anti-crime measure.

O'Connor, who left the post in January to become Ohio's lieutenant governor, defended the program, saying it has had the opposite effect. Not only has direct indictment saved money and accelerated justice, she argued, it actually has helped prosecutors become more selective about cases.

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WHAT IS PROSECUTOR'S ROLE?

Whatever is behind them, the recent Summit County trends raise several questions about the role prosecutors should play, about how they should wield their enormous powers, and about how the exercise of those powers can impact the lives of ordinary citizens.

A search through court files yields several examples of citizens -- some of them with little or no criminal record at all -- who have had their lives turned upside down by wobbly felony charges that were allowed to linger well beyond the point that the available evidence would seem to justify.

Take Chansen Anderson, for instance.

A high school graduate with only minor offenses in his past, Anderson served 75 days in the Summit County Jail on a burglary charge until a court-appointed attorney managed in February to convince prosecutors that the worst thing Anderson could possibly be guilty of was shoplifting -- a misdemeanor.

Or take Brady Hutchinson.

With nothing more serious than a speeding ticket on his record, Hutchinson, 23, spent five days in a West Virginia jail, incurred legal expenses he still hasn't paid off and was passed over for the job of his dreams in Akron because of a peculiar felony indictment in Summit County -- later bolstered by additional charges after he refused to plead guilty -- that hung over his head for seven months. All charges ultimately were dropped, but only after Hutchinson agreed in writing not to sue prosecutors or police.

Or take Aaron L. Gordon, 20, who was held in jail for 73 days -- facing three felony charges that could have landed him behind bars for life -- in connection with a 1997 murder at an Akron housing project. Another man was eventually convicted of the crime and all three of Gordon's felony charges were dropped, in return for a guilty plea to an obscure misdemeanor charge of roughly the same legal significance as riding a skateboard after dark.

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UNCHALLENGED ASSERTIONS

Attorneys say, and court records confirm, that defendants can be indicted for serious felonies solely on the basis of unchallenged police assertions -- even when the officer is only repeating what was heard from others.

And once an indictment is filed, they say, prosecutors are loathe to let it go even when, in some cases, the facts don't fall their way.

"The forces are so large and unwieldy," said George, the former prosecutor. "And once they get rolling in one direction, it's difficult to bring it back to reason and common sense."

O'Connor said her office was as reasonable and common-sensical as the law and the desires of crime victims would allow.

"The job of the prosecutor is to analyze the case, develop the evidence and put it before the fact-finder to seek justice," O'Connor said. And while pleased with her overall winning percentage, O'Connor said that success in her office was never measured simply by getting convictions.

But attorney Andrew Kinder said one would never know it by looking at the case of Reail Peace Jr.

A year ago Friday, a few hours before dawn, Peace was chased from Grace Park by three men for reasons that remain unclear.

Trying to elude his pursuers, Peace bounded onto the porch of a first-floor apartment in the 600 block of East Buchtel Avenue and pounded on the door. Getting no response, he dove through the front window to escape.

No one was home at the time.

With blood flowing from a gash to his right forearm, Peace settled on a spot beneath the basement stairs to hide. He huddled there for nearly three hours -- in a pool of his own blood -- until daybreak, when he left the apartment and started walking toward Akron City Hospital for treatment.

On the way, he passed a neighbor who was reporting the broken window to police on a pay phone, telling them about the blood she had seen inside. "That's my blood," Peace told the woman, according to police reports.

He then walked with the woman back to the apartment, where he told police the whole story. They didn't even arrest him at the time -- sending him off to the hospital with paramedics instead.

It wasn't until seven hours later, according to records, that police went back to City Hospital in search of Peace. Finding that he'd already been treated and released, they swore out a warrant.

Peace was arrested a week later and spent two weeks in jail before an acquaintance posted bond. A Summit County grand jury indicted him for burglary -- a fourth-degree felony punishable by up to 18 months in prison.

Kinder acknowledges that, on purely technical grounds, Peace's behavior last May 14 satisfied the factual requirements for Ohio's lowest-level burglary charge: Peace had entered "by force" into a dwelling where someone else was "likely to be present."

But given the circumstances, Kinder argued that Peace was not guilty of anything more serious than, say, trespassing -- a fairly inconsequential misdemeanor.

If Peace had not freely told them his story, Kinder said, police would have had no idea what happened that morning or who did it. Peace admitted he'd been using drugs that day, Kinder said, and he never gave police any trouble. The resident of the apartment, who had been away for the night, told authorities that nothing had been taken.

"The prosecutors were unwilling to even address that with me," Kinder said.

"I said, 'C'mon, there's no criminal intent here. He was home free until he voluntarily turned himself in.' I said, 'Give him a misdemeanor. He'll pay for the window.'

"They said, 'No.' They wanted the felony."

With no acceptable plea options, Kinder had no choice but to go to trial -- without his client's testimony. Both sides knew that if Peace even approached the witness stand, prosecutors would be able to ask him about his prior record.

Prosecutors took Peace to trial in August. But even without his testimony, the jury rejected their case in no uncertain terms. Following a two-day trial, jurors acquitted Peace in one hour flat.

The assistant prosecutor in the case, Jennifer Ferrick, is no longer with the office. She declined to respond to a message seeking comment.

Whatever her thinking, a first glance at the jury's decision might lead one to conclude that justice was done in the Peace case, that the system worked.

But in the view of Kinder and others, there was a punitive zeal at work in the Peace prosecution that says as much about the weaknesses of the modern judicial system as it does about its strengths.

"Most of the time it's a pretty good system. Good cops, good prosecutors," said Kinder's partner, defense attorney Tom Adgate.

But according to Adgate and others, prosecutors' increasing willingness to push even questionable cases to the limit in search of felony convictions has threatened to flip a hallmark of American justice -- the presumption that a defendant is innocent until proven guilty -- on its head.

Historically, that presumption has been expressed as a preference that the system let 10 guilty people go free rather than put one who is innocent behind bars.

But recent practice has seemed to reverse the preference, Adgate said.

"It's been better to send a few innocent people down then to let a guilty one go free," he said.

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GRAND JURY PROBLEMS

 

The problem, critics say, begins with the Summit County grand jury, the starting point for practically all felony prosecutions.

A revolving panel of citizens, the grand jury works under the direction of assistant prosecutors to decide whether sufficient evidence exists to indict someone on felony charges. A holdover from the English system, the institution was originally designed to protect citizens from overzealous prosecutors by weeding out frivolous or unreasonable charges.

However, it has evolved in the American judicial system into what's widely viewed as a rubber stamp for the prosecutor -- a pliable tool that, in the working vernacular of the courthouse, can generally be counted on to "indict a ham sandwich" if that's what the prosecutor wants.

Still, grand juries have traditionally served as screening mechanisms, allowing prosecutors to filter out weaker, unprovable cases -- often dismissing them with "no bills," or refusals to indict -- while proceeding with felony indictments in cases the prosecutors want to pursue.

But that screening mechanism apparently has been doing much less screening lately in Summit County.

A Beacon Journal analysis of 12 years of criminal-case records shows a dramatic decline in the number of cases rejected for prosecution during the four-year tenure of former prosecutor O'Connor, who was elected Ohio lieutenant governor in November and is also serving as director of the state's Department of Public Safety.

From 1995 through 1998, the average number of grand jury "no bills" issued each year was down nearly 60 percent from the previous four-year average -- raising the prospect that, under O'Connor, hundreds of cases were accepted into felony courts that would likely have been rejected before.

The court data also show a slight increase in the number of individuals indicted for felonies during the O'Connor years -- against a backdrop of generally declining crime -- and a more significant increase in the number of charges the typical defendant was likely to face.

From 1995 through 1998, Summit County defendants were indicted on an average of 2.7 criminal counts apiece, up 15 percent from the previous average.

Last year, with reports of serious crime well below the recent high-water marks established in the late 1980s and early 1990s, Summit County grand juries indicted more individuals than ever.

In a recent interview, O'Connor denied that prosecutors became less selective during her stay in the prosecutor's office. In fact, she said, prosecution standards were raised.

She attributed the dramatic decline in so-called "no bills" during her tenure to the direct-indictment program she instituted in 1996. The program, she said, did a "more efficient job" of weeding out weak, unindictable cases before they ever got to the grand jury, so the grand jury had fewer to reject.

And while the number of charges per defendant may simply be a reflection of the charges suspects were arrested for, O'Connor said it might also reflect her insistence that the law be scrupulously followed in grand jury proceedings.

"Did I have a policy that you're going to indict them on everything possible? Yes," O'Connor said. "And I will not apologize for that. Any crime that their activity fits will be part of the charge."

Judging by the most traditional measure of prosecutorial effectiveness -- the conviction rate -- O'Connor's four-year tenure as prosecutor was impressive.

Of all indicted cases disposed of during O'Connor's tenure, court data show that roughly 91 percent ended in conviction, up from just under 89 percent in the years before she took office. Partial 1998 data showed she was flirting with a 93 percent rate in her final year. But former prosecutors and other defense attorneys say that record cries out for an asterisk of some sort, that O'Connor's output was inflated by misdemeanor convictions -- which attorneys consider almost as good as an acquittal because they are so much less serious than felonies, usually don't result in jail time and don't trigger the employment and housing problems often associated with felony convictions.

Critics say that charging and plea-bargaining practices under O'Connor -- including more multiple-count indictments and charges that sometimes seemed to overstate the severity of the facts -- resulted in more shaky felony cases being indicted than any could remember.

And more were getting pushed to the brink of trial and beyond.

"Goofy, stupid cases have been going to trial," said George, the former prosecutor.

And as more cases went to trial -- giving judges and juries the opportunity to actually scrutinize the evidence -- more ended in low-grade misdemeanor convictions or out-and-out acquittals.

Judges say they've noticed the trend from the bench.

Even newly named prosecutor Michael Callahan, who spent the last four years as a common pleas judge, acknowledged the surge in weaker cases in recent years.

"I've been there," Callahan said, when asked about judges' complaints. "I know. There's no doubt about it."

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DATA SHOW WEAK CASES

It's clear from computerized court data as well.

Cases initiated during O'Connor's first three years in office, the only years for which complete case data were available, generated an average of 104 criminal trials a year, up 17 percent from the 89-trial-per-year average for the pre-O'Connor years.

And, like Peace, a greater percentage of those defendants wound up winning.

The likelihood of a trial resulting in acquittal increased by 23 percent for cases initiated during the O'Connor years, according to the data. About one defendant in every four was acquitted at trial under O'Connor, up from about one in five in preceding years.

And the likelihood of a trial ending in a misdemeanor conviction grew even faster.

About one trial conviction in every seven was for a misdemeanor during O'Connor's tenure, according to court data, compared to about one in 13 before she became prosecutor.

Among all common pleas cases, the misdemeanor conviction rate increased about 22 percent under O'Connor, raising concerns even among some judges about the quality of felony cases being prosecuted.

"I have never seen misdemeanors so high as in the last several years," said one common pleas judge who asked not to be named. "And they are justified.

"Cases are getting indicted that ought to be handled in municipal court. They should be an assault (a misdemeanor) but are indicted as felonious assault (a second-degree felony). There are no witnesses or the witnesses are uncooperative. Nobody wants to prosecute them, so they end up getting pleaded down to a misdemeanor."

While not disputing that the likelihood of acquittals increased during her tenure, O'Connor characterized the change as "pretty insignificant."

Nor was she disturbed about the increase in misdemeanor convictions.

"There are a lot of different reasons for negotiating a misdemeanor and a lot of it is victim driven," O'Connor said. If justice is served for the victim by a misdemeanor, she said, "I'm not uncomfortable with that at all."

O'Connor also said she is not concerned about the judges' concerns. "I know that taking a case to trial and resulting in a misdemeanor conviction is oftentimes no small thing. It's no small thing for the victim.

"So, I'm sorry if their perspective is that the court is too important to . . . waste time on this subject matter. I don't see it that way."

For some defendants, the eventual misdemeanor resolution came only after months of haggling with prosecutors. Some shelled out thousands of dollars in attorneys' fees; others cooled their heels for weeks or months in jail on the more serious charges while awaiting the more modest outcome.

And in some cases, prosecutors appeared to fight to hold onto the felony charges -- even when the evidence suggests that the case was flimsy at best.

Don Helmkee, 37, was indicted for felonious assault in late 1996 after a 24-year-old sales representative for Frito Lay Inc. told police that Helmkee had thrown him to the ground outside a Firestone Park bar and repeatedly kicked him in the face.

Helmkee, a concrete worker with only minor prior infractions listed in official files, protested his innocence. But he was arrested on the salesman's complaint and sat in jail for three days trying to make bail.

He hired a lawyer, who tried to get prosecutors to reconsider the charge -- a serious, second-degree felony punishable by up to 10 years in prison.

But for months they refused to budge, despite fact problems evident in their own case files.

Paramedic records show that the salesman told a different tale on the night of his injury -- claiming that he'd been attacked by two or three individuals who struck him in the chin with a brick.

The victim had consumed "copious amounts" of alcohol, according to those same records, and bystanders told paramedics that the man had simply fallen down.

Patrons and employees at the bar, several of whom were prepared to testify, also told Helmkee's lawyer that his client had no involvement in the salesman's injuries.

If the police ever talked to anyone but the alleged victim, the prosecutor's file contains no hint of it. Still, prosecutors played hardball with Helmkee.

Records show they initially offered him the opportunity to plead guilty as charged -- to felonious assault -- and take his chances on penalty. Helmkee declined.

Then they offered him the option of pleading guilty to aggravated assault, a less serious felony, but added that they would oppose probation -- meaning that a prison sentence was likely. Helmkee declined again.

Next, they offered him simple assault, a misdemeanor that Helmkee also refused.

Finally, on the day Helmkee was scheduled to go to trial, months after the charges were initially filed, prosecutors said he could walk free with a guilty plea to disorderly conduct, a minor misdemeanor of roughly the same legal significance as jaywalking.

Helmkee was ready to decline that too, until his attorney, former prosecutor Roger Davidson, told him it would likely cost him another $1,000 to take the case to trial.

Davidson said he finally persuaded Helmkee to plead "no contest" to the minor misdemeanor -- a protest plea that essentially meant he would accept the conviction without admitting any of the facts.

A call to Becky Doherty, the courtroom prosecutor in the case, was referred to Callahan, the current county prosecutor. After reviewing the case, Callahan defended Doherty's handling of the matter.

Pointing out that evidence like paramedic reports often is not available in the early stages of a case, Callahan said that "on its face, it (the Helmkee case) certainly looks like a felonious assault. When you start digging in and interviewing witnesses and talking to people, that's when you find out that it isn't."

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'GARBAGE CASES'

 

To Davidson, however, Helmkee's is a clear example of the kind of "garbage cases" that have been popping onto trial calendars with disturbing regularity.

He said the problem is partly political, an outgrowth of ambitious, tough-on-crime prosecutors trying to curry favor with an increasingly conservative electorate.

"As a prosecutor, you won't lose an election by being too hard on criminal suspects," Davidson said. "Prosecutors get no flack for overindicting."

But Davidson and others say the trend may also be an unintended consequence of O'Connor's direct indictment program, introduced in mid-1996 at least in part as a cost-saving mechanism pushed by city and county officials.

The program -- since extended to Barberton Municipal Court -- promised to cut jail costs and police overtime pay by taking all Akron felony cases directly to the county grand jury within 10 days of the defendant's arrest, bypassing the traditional preliminary hearing in Akron Municipal Court.

But critics say one of the program's consequences may have been to lower the bar on felony prosecutions.

By dispensing with preliminary hearings, they say, the program eliminated a vehicle for weeding out cases that should have been handled as misdemeanors.

It also sped up the process to the point that prosecutors often had to make charging decisions on cases before the evidence was fully assembled.

And it concentrated grand jury duties in the hands of a few nearly full-time indicting prosecutors, meaning that the prosecutor who indicted a case was not likely to be the one trying it.

And that, according to former prosecutor Davidson, introduced a key lack of accountability into the grand jury process itself.

It used to be that prosecutors had to dispose of the cases they indicted, he said. As a result, they tended to operate by an unwritten rule: "Indict a dog; try a dog."

Under the new arrangement, critics say, indicting prosecutors have had to worry less about how a case will actually play in court. And courtroom prosecutors frequently have not seen or evaluated the evidence in a case until the trial date is nearly upon them.

In Davidson's view, the collapse of the Helmkee prosecution is a prime illustration.

By March 10, 1997, the day Helmkee was to go to trial, the salesman's conflicting statements had been a matter of record for months.

But, Davidson said, it was clear that morning that "nobody had bothered to read them before."

At least in principle, Callahan acknowledges the problem.

Under the direct indictment program, indicting prosecutors are rarely asked to try the cases, he said, so they have had a tendency to be less rigorous than in the past in evaluating the merits of cases before the grand jury.

And courtroom prosecutors -- those who are responsible for disposing of cases -- often don't have a chance to see their cases or discover their weaknesses until much later in the process.

The Helmkee case, Callahan said, "probably should have been handled at the grand jury level, and it wasn't."

The precipitous decline in the number of grand-jury "no bills" in recent years "is directly related to the fact that the courtroom prosecutors are not the ones presenting the cases (to grand jury) that they are going to have to try," Callahan said. "Plain and simple."

But another problem has been "the philosophy of the people working the direct indictment program," Callahan said, a philosophy that apparently led some indicting prosecutors to believe that they were doing their jobs by finding creative ways to charge cases as felonies, even if it wasn't always justified by the facts.

He said he has made a commitment to his former colleagues on the bench that "I was going to cut down on the number of bad cases, misdemeanor cases."

Callahan said he didn't promise that his office would never produce misdemeanor convictions, because sometimes that's unavoidable.

"What I did tell them, though, is that we were not going to indict misdemeanors. And that if it was truly a misdemeanor case, we were not going to try to push to try and make it a felony.

"We're here to handle felonies," Callahan said. "We're not here to invent felonies, we're here to handle them."

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PRESSURE ON DEFENDANT

 

But the prosecution of Helmkee does more than just highlight procedural problems with the grand jury. It also illustrates concerns that legal scholars have had for years about the uses of prosecutorial power.

The fact that prosecutors pressed Helmkee so hard for a felony plea -- despite the apparent lack of evidence to support it -- and then insisted that he plead guilty to something when their case fell apart, raises questions about how guilty pleas are extracted from other defendants.

Data show that 98 percent of all convictions produced in Summit County felony courts come through guilty pleas -- verdicts that are usually negotiated without the value of evidence or testimony ever being tested in court.

Because prosecutors can largely control the possible penalties a suspect might face -- by deciding what charges to bring and what charges to dismiss in exchange for a guilty plea -- they also can exercise what scholars describe as nearly total control over the bargaining process.

"It's a system that has to produce more convictions of innocent people," said Albert Alschuler, a University of Chicago law professor who has written for 30 years on the potential abuses of plea-bargaining by increasingly powerful prosecutors.

"It's designed to convict more people who are innocent," Alschuler said. "And without trials, it's difficult to tell which of the people you are convicting are actually innocent."

The problem is that not every defense attorney is as willing as Davidson was in Helmkee's case to resist the pressure to plead.

In fact, according to Davidson and others, until they were adjusted last year, the maximum fees allowed for court-appointed attorneys had the effect of discouraging lawyers from investing much time in a case. The more hours they invested, the less likely they were to be fully compensated.

"A lot of defense attorneys make a lot of money by pleading everybody guilty," said law professor Alschuler.

Depending on which charges they choose to file, prosecutors can sometimes apply enough pressure to force defendants to plead guilty, attorneys say, even to offenses they probably wouldn't be convicted of at trial.

"People confess to things all the time that they didn't do, based on external pressures," said defense attorney Mary Margaret Rowlands.

The pressures come both from prosecutors and from the economics of the criminal justice system, she said. And those most susceptible are often those least able to resist.

"Targets of prosecution are the most vulnerable people in society," Rowlands said. "They are low income; poorly educated; they might not be squeaky clean to begin with and if they do have some kind of a record, it becomes increasingly difficult to defend themselves because, as a practical matter, they can't take the (witness) stand."

People, in other words, like Reail Peace Jr.

Or like Iman G. Taylor.

A 20-year-old father of three, Taylor was indicted for three felonies in late 1997 and spent six months facing the prospect of prison time, essentially for being in the vicinity of a possible attempted theft -- of a pit bull.

Taylor spent three weeks in jail after his arrest because he couldn't afford $250 bail.

He withstood prosecutorial urgings to confess to one of the three felonies. He resisted all the way until the day he was scheduled to go to trial last May, when he finally relented and pleaded guilty to trespassing, a fourth-degree misdemeanor. It is one of the least serious offenses possible.

Because going to trial on felony charges is always a roll of the dice, Rowlands said, defense attorneys have trained themselves to "always take the misdemeanor."

But even trespassing was a stretch in this case, she said.

Taylor had hitched a ride to a Copley home with the friend of a friend in broad daylight one Sunday afternoon in late 1997. He told police he went there to pick up an application for a second job.

Police later confirmed that a youth living there had been expecting Taylor's job inquiry -- so he apparently had a defensible reason for being there.

Taylor's problem arose when the property owner saw Taylor's friend, a juvenile, walking down the driveway with one of her pit bulls on a chain. She concluded the juvenile was trying to steal the dog and called police, who arrived almost immediately.

Taylor's problem deepened when police learned that the truck the juvenile was driving that day had been stolen.

They charged Taylor with receiving stolen property and breaking and entering, on the theory that he had trespassed on the Copley property with the intention of stealing the dog.

Barberton Municipal Judge Michael McNulty sent the receiving charge on to a county grand jury, even though no evidence was presented that Taylor ever drove the truck or knew it was stolen.

But McNulty threw out the breaking and entering charge, saying there was no evidence linking Taylor with the dog "that was allegedly being stolen" and, therefore, no probable cause to prosecute him for breaking and entering.

But that didn't deter county prosecutors.

Not only did they retain the receiving charge, they also restored the breaking and entering that McNulty had thrown out. And they added a third felony indictment -- for theft of the pit bull -- even though the dog hadn't actually been taken.

Prosecutors worked to coax a plea, offering to drop two of the felonies if Taylor would plead guilty to the third, plus a first-degree misdemeanor.

Taylor declined. He couldn't risk the possibility of prison time, Rowlands said.

If he insisted on going to trial, prosecutors threatened to use Taylor's prior record in court, even if he declined to testify in his own behalf.

The judge said they couldn't do that.

Finally, on the day of trial, prosecutors collapsed their tent almost completely. They dropped all three felonies, in return for the trespassing plea. As a result, Taylor got probation.

A call to prosecutor Scott Rilley was referred to Callahan, who said that Rilley remained convinced of Taylor's guilt even as he agreed to the trespassing deal.

Apparently, the juvenile had already pleaded guilty in juvenile court and was going to testify that he intended to steal the dog, but that Taylor didn't know it and had nothing to do with it.

"You can always argue that was the truth," Callahan said. Or, "as we believe," that the youth had already taken his licks in juvenile court and "he's saving his buddy from felony prosecution as an adult.

"When that's going to happen," Callahan said, "sometimes you've got to cut your losses."

But Rowlands -- who believes not only that Taylor was not involved, but that that's what the available evidence shows as well -- said things never should have gotten that far.

When prosecutors discovered they didn't have a case, they should have dismissed the charges outright, Rowlands said, instead of insisting that Taylor plead to something.

While hopeful that such situations might be handled differently under the new prosecutor, Rowlands said that until recently, admitting error has not been one of the office's strong suits.

"They would rather saddle someone with a felony conviction than admit they made a mistake."

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