Akron Beacon Journal, 17May1999-1

But four years later, after her tough-on-crime political persona and sterling Republican Party credentials catapulted her from the prosecutor's office to a spot on the successful gubernatorial ticket of Bob Taft, one of the most common criticisms of O'Connor's record is that indictments during her tenure tended to overstate the case.

Whether a result of an aggressive prosecutorial philosophy or the unanticipated outgrowth of policies she put into place, critics say the O'Connor years were characterized by "creative" charging techniques that often appeared driven by a desire to raise the stakes in plea negotiations instead of accurately describing the severity of a defendant's alleged criminal behavior.

Frequently referred to as overindictment, such techniques usually take the form of charging defendants with more offenses, or more serious offenses, than could actually be proved in court.

And those techniques are common enough among prosecutors nationwide -- and worrisome enough to legal scholars who fret over their potential to distort the outcome of criminal cases -- that several would-be reformers have proposed initiatives to try to dissuade prosecutors from using them.

O'Connor denied that her prosecutors engaged in overindictment.

But an Akron Beacon Journal examination of computerized court records reveals several shifts in indictment patterns over the last four years that lend credence to the criticism.

Court data suggest that, under O'Connor, the prosecutor's office became significantly less selective in choosing which cases to prosecute, even while pursuing many of those cases more forcefully than ever.

That combination, according to defense attorneys and judges alike, produced an upsurge in weak felony cases that prosecutors pursued aggressively through the court system, even in some cases when the charges proved too strong for the facts.

The court data also reveal marked shifts in charging patterns during the O'Connor years. Some of those shifts -- because they don't appear to correspond to discernible shifts in crime patterns or changes in the law -- have invited the criticism that her prosecutors engaged in overindictment as a way to strengthen their hand in coaxing guilty pleas.

A long-term trend toward more multiple-count indictments accelerated under O'Connor, for instance. The average number of criminal charges facing each defendant increased substantially.

And indictments for such offenses as tampering with evidence -- often cited by defense attorneys as a prosecutorial bargaining chip to encourage drug defendants to plead guilty -- rose far faster than statistics on street-level drug activity would seem to explain.

While not critical of O'Connor per se, some common pleas judges have joined defense attorneys in privately complaining that case dockets during her tenure became increasingly clogged with weak cases that proved difficult to prosecute, leading to more felony charges being reduced to misdemeanors.

Several judges and defense attorneys also have speculated that pay incentives in the prosecutor's office -- policies linking pay hikes to the number of cases prosecutors take to trial -- may also be partly to blame for recent increases in both the number of trials and the likelihood that defendants would be found not guilty.

The raises-for-trials policy, in the words of one sitting judge, has made some observers wonder if prosecutors have been trying "dog cases they shouldn't be trying" for reasons having more to do with economics than jurisprudence.

O'Connor said the policy -- which, in addition to cost of living increases, offered entry-level prosecutors an annual pay hike of roughly $4,000 after three years if they had taken at least 30 cases to trial -- was designed as an incentive to reward courtroom experience and reduce turnover.

"It was understood," O'Connor said, that the policy "was not to affect their negotiations" with defense attorneys to resolve criminal cases.

Although sympathetic with its intent, newly named Prosecutor Michael Callahan said he does not support that policy.

"It didn't say 30 winning jury trials," he pointed out. "It just said 30 jury trials."

While Callahan said he can't unilaterally change the policy because it's written into the county's job classifications, he has taken steps to address the recent surge in weak felony indictments by rotating more courtroom prosecutors into grand jury proceedings.

By making indicting prosecutors more sensitive to the evidence required by those handling cases in court, he said, he hopes to reduce the number of weak felony cases, the number of acquittals and the number of misdemeanor convictions.

Callahan said he will know he's succeeding "when the judges quit screaming about it."

And if the office hasn't made substantial progress in his first year, he said, "then I am going to yank the people out that are in there (with the grand jury) and put new people in there until I get people in there who are going to do what I tell them."

NOT PLACING BLAME

Despite such forceful language, Callahan described the problems he's trying to address as largely procedural, and took considerable pains not to lay responsibility at O'Connor's doorstep.

"I'm not going to be a part of anything that looks to disparage my predecessor," he said.

The fact that others have not been as charitable comes as no surprise to O'Connor, now Taft's lieutenant governor and director of the new administration's Department of Public Safety.

"You know, I think I've got a reputation out there of being one tough woman," O'Connor said in a recent interview. "Sometimes I think, who is that person they are talking about?"

But, she said, "If somebody wants to criticize me for taking a tough stance on indictments and prosecution of cases, I would take that as a compliment.

"You look at the office's success rate with some of the really -- I think -- tough, high-profile felonies that we have done in the last four years," O'Connor said. "I think we've had excellent results.

"I can look myself in the mirror and not lose sleep over the way the job was done."

O'Connor dismisses the assertion that her prosecutors lowered their standards or deliberately inflated misdemeanors into felonies, saying that such a practice would amount to "making work for ourselves." Nor did they overindict defendants to improve their bargaining position, she said.

But they didn't ignore anything, either.

"If the activity fits the elements of a crime," O'Connor said, summarizing her philosophy, "there is going to be an indictment on that activity. And I don't believe that calling a spade a spade, or identifying an activity as such, when all the elements are there, is a bad thing."

A CASE FOR CRITICS

But Aaron Gordon and his attorney don't agree.

Although only one defendant among thousands prosecuted during the O'Connor years, Gordon's case presents a clear illustration of some of the critics' complaints.

There's no question that Gordon, then 20, was on the scene at the Edgewood Homes public housing complex on April 14, 1997, when 44-year-old Anwar Shehadeh was beaten to death with a baseball bat.

But based on a review of the prosecutor's file, any evidence that Gordon participated in the attack appears to have been slim at best.

Several eyewitnesses told police that Antoine Martin, also 20, became enraged during an argument with Shehadeh over a drug deal, that he pushed the older man to the ground, and -- having grabbed the bat from Gordon, according to one of the witnesses -- he brutally beat Shehadeh to death while he was down.

Already wanted on an unrelated misdemeanor assault charge, Gordon was arrested two weeks after Shehadeh's death.

A Summit County grand jury then indicted him for three of the most serious felonies possible:

+ Felonious assault, for knowingly causing serious physical harm to Shehadeh.

+ Involuntary manslaughter, for causing the death of Shehadeh while committing felonious assault.

+ Murder, for purposely causing Shehadeh's death.

Facing a mandatory sentence of life in prison on the charges, Gordon was ordered held on a 10 percent appearance bond of $250,000, meaning he'd need to put up $25,000 in cash to get out of jail.

But prosecutors apparently never really thought Gordon committed the offenses he was charged with -- or at least didn't believe they could prove he did in court. What they really wanted was to ensure his cooperation.

After Gordon agreed to testify against Martin, prosecutors dropped all three of his felony charges, allowing him to enter a guilty plea to the obscure -- and minor -- offense of failure to report a crime.

Gordon was later sentenced to 30 days in jail, 43 days fewer than he'd already spent behind bars awaiting trial on the felony charges.

As a fourth-degree misdemeanor, failure to report a crime is legally less significant than riding a skateboard after dark, which is listed as a third-degree misdemeanor in Akron's municipal code.

Gordon's case, in the words of University of Chicago law professor Albert Alschuler, is a good illustration of the "overwhelming leverage that prosecutors have to coerce people to do their bidding."

"Something's got to be wrong in that case," said Alschuler, who has been writing for 30 years about the potential problems associated with a system that gives so much power to prosecutors.

"Either in the charging or in the dismissal," Alschuler said, "something's got to be unjust there."

A call to Michael Carroll, the assistant prosecutor who indicted Gordon, was referred to Callahan, the current county prosecutor, who said he has no problem with the way the Gordon case was handled.

"The bottom line here is you're in the midst of a drug deal that went bad," Callahan said.

"When you get the facts on a case like this, you're not dealing with a carload of nuns that just left St. Bernard's. So, you indict the folks that are there and you shake it out afterwards.

"And sometimes you make deals with folks -- a great deal with this guy, because he cooperated. He helped against the killer. And, of course, the facts ultimately shake out at some point in time that he probably isn't guilty" of what he was indicted for.

But Gordon's attorney, Kirk Migdal, remains incredulous.

"I don't know how you can indict someone for murder and then allow them to plead to an M4 (a fourth-degree misdemeanor)," Migdal said. "That's like spitting on the sidewalk.

"If you believed he was involved in a murder, how can you allow him to plead to an M4, no matter what he testifies to?

"And if there is no evidence he was involved in a murder, who is indicting him?"

CAUSES OF TREND SHIFTS

In fact, the Gordon case seems like a textbook example of overindictment, which according to legal scholars usually takes one of two forms: the practice of piling on more serious charges in a case than can be sustained in court, or of defining and charging the same act under as many different criminal statutes as possible.

And local critics say such "creative indictment" practices are behind some of the more dramatic shifts in prosecution patterns that show up in computerized court data for the last several years.

Clearly, some of those recent shifts provide fairly straightforward reflections either of fluctuations in local crime and arrest trends or of changes in state law.

For instance, some of the upward pressure on Summit County's criminal caseload -- which nearly doubled in the late 1980s and early 1990s with the local arrival of crack cocaine and the drug-related crime it spawned -- has eased in recent years.

Although still accounting for about a third of those indicted in Summit County, the number of defendants indicted on drug charges declined about 14 percent during O'Connor's tenure, according to court data. The trend appears to reflect a similar decline in the number of Akron drug arrests for the period as well as new diversion programs designed to handle some of the less serious drug offenses outside of felony court.

Theft indictments also declined dramatically during the O'Connor years, reflecting 1996 changes in state law that made it more difficult to bring felony indictments in relatively minor theft cases, even when the defendant has prior offenses.

Likewise, indictments for such offenses as domestic violence (up 261 percent under O'Connor) and driving under the influence (up 131 percent) appear to reflect the Ohio General Assembly's efforts to crack down on those infractions by authorizing felony indictments for second offenses.

But indictments also increased substantially for several felony offenses that are called "sweeteners" or "enhancers" by critics, who argue that they serve mostly as bargaining chips to strengthen prosecutors' negotiating position in plea discussions.

For instance, from 1995 through 1997, the last year for which detailed case information was available, the number of defendants indicted for forgery increased 34 percent over the previous three-year period, even though forgery and counterfeiting arrests in Akron -- which generates about two-thirds of Summit County cases -- were declining by about 40 percent.

Defense attorney Patricia Mill-hoff and others say forgery indictments have been used as a way to raise the stakes on what used to be indicted as bad-check cases or credit card fraud.

O'Connor said there's nothing mysterious about the number of forgery indictments on her watch, although she can't vouch for what happened in earlier years.

During her tenure, she said, if a defendant's action fit the statutory definition of forgery, "that was presented to the grand jury, the grand jury says, 'Aha, based on what we know, forgery is appropriate.' "

Several attorneys also have raised eyebrows over the 130 percent increase in conspiracy indictments under O'Connor and the 90 percent increase in indictments on racketeering charges (called RICO, an acronym for the Racketeer Influenced and Corrupt Organizations Act).

RICO charges, usually lodged against drug dealers, are "the biggest bargaining chip they're using now," according to defense attorney Tom Adgate, because it has the effect of adding a first-degree felony allegation to whatever underlying offense it's attached to.

Again O'Connor's response was direct.

"If we decide we are going to look at a series of activities and it fits the bill for RICO . . . it will be indicted. That is pretty much the philosophy of my tenure in office."

But adding tampering-with-evidence charges against drug defendants is probably the clearest illustration of what Adgate calls a prosecutorial "sweetener."

A third-degree felony, tampering is most often employed in less serious drug cases, usually when the suspect tries to swallow the illegal substance or throw it on the ground when police approach.

"They are just throwing those in on drug cases," Adgate said, on the theory that "the more (charges) you add on, the surer you are of getting a conviction."

During O'Connor's first three years in office, 272 defendants -- roughly 80 percent of them drug defendants -- were indicted for tampering, an increase of 248 percent from the previous three-year period. And through October of last year, tampering indictments were keeping pace.

Among those indicted for tampering under O'Connor, 96 percent were eventually convicted of something, practically all of them through guilty pleas. And 71 percent of them were convicted of drug charges.

But only 20 percent of the tampering defendants were actually convicted of tampering with evidence, which seems to confirm the charge's status as a bargaining chip.

O'Connor said it's certainly possible that evidence tampering was ignored by prosecutors before she took office, and that her refusal to ignore it accounts for the dramatic increase. "I can't speak for what happened before," she said.

But while denying that her prosecutors overstated the facts or the severity of cases to improve their bargaining position, O'Connor did say that it's not necessarily "a bad thing to be in the driver's seat when you're prosecuting crime and criminal activity.

"It's always good to negotiate from a position of strength. And when you look at what we just cited -- the tampering indictments having gone way up, or forgeries, or your burglaries, or even the number of multiple-count indictments -- you know, it's negotiating from a position of strength."

While it may have been inadvertent, adds Prosecutor Callahan, when the legislature reduced the seriousness of drug abuse in 1996, while at the same time increasing the penalties for third-degree felonies, tampering did become an attractive tool for prosecutors to use to discourage defendants in low-level drug-possession cases from going to trial.

"Judges call that docket control," said Callahan, a former judge. And far from being critical of the practice, he said it's one of a number of tools the system uses to limit the number of trials by encouraging defendants to plead guilty to what they actually did.

"We don't necessarily want to try all these" cases, he said. "Nor should they be."

"Ninety-five to 98 percent of every person that gets arrested either pleads guilty or is found guilty," Callahan said.

"So, when I'd speak to young (defense) lawyers and young law students -- especially as a judge, I'd shock the heck out of them (by saying), 'The first thing you've got to understand, that person standing next to you (in court), he's guilty. The question is, what is he guilty of?

" 'Your job is to ferret out whether everybody did their job right and is he properly charged and then get him the best deal.

" 'Heaven forbid that you get one of that 2 percent that's actually innocent. Because we know that some of them are actually innocent.' "