YOUNGSTOWN Law keeps man from testifying

The judge said he's bound to follow the law even though he doesn't like it.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- Judge R. Scott Krichbaum swallowed a bitter pill in court Friday because the law said he had to do it.
He planned to put Bryant McGauley on the witness stand and make him give the testimony he should have given during a murder trial last month.
But after defense attorney Louis DeFabio and Assistant Prosecutor Patrick Pochiro said the judge doesn't have the legal authority to force the testimony, Judge Krichbaum changed his mind.
After hearing of the legal precedent, Judge Krichbaum backed off and agreed that he could not force McGauley to take the stand.
"I don't like this. I don't think it's right," Judge Krichbaum said. "But I am bound by the law. I have to honor it, and that's what I am going to do."
Subpoenas issued: McGauley, 19, of Otis Street, was subpoenaed to testify during the murder trial of Frederick Easterly but did not appear. He was apprehended on a bench warrant after the trial ended with Easterly being acquitted. Judge Krichbaum had McGauley jailed for 30 days for contempt of court.
The judge had said he would force McGauley to come back to court at the end of his jail term and testify just as he would have during the trial.
But before McGauley could take the witness stand Friday, DeFabio presented federal and state case law that says subpoenas are effective only during the trial for which they are issued. When Easterly's trial ended, the court lost its ability to force McGauley to testify, he said.
"The power to order someone to testify comes from the subpoena, but the subpoena no longer exists," DeFabio said.
Pochiro said he, like Judge Krichbaum, was angered that McGauley and his brother, Terrell McDowell, ignored subpoenas and failed to appear for the trial. However, he agreed with DeFabio that there is no authority to force them to testify now.
Message lost: Judge Krichbaum said he had hoped to send a message that people who ignore subpoenas would be found, punished for failure to appear, and made to testify anyway.
"But the message this gives is that the shooters, the bad guys, are in charge and that's just not acceptable. There is something wrong with that," he said.
McGauley and McDowell, 21, also of Otis Street, said they didn't appear because their lives had been threatened if they testified.
McDowell was found in contempt of court Friday and was also sentenced to 30 days in the county jail.
"What has occurred here is an absolute frustration of justice," Judge Krichbaum said. He said there's no guarantee that Easterly's acquittal would have gone differently if McGauley and McDowell had testified, but said jurors should have been able to hear their side of the story.
bjackson@vindy.com