YOUNGSTOWN Judge is forced to delay trial again

There was a misunderstanding among assistant prosecutors over who was to try the case.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- The lawyers, judge, defendant and a court stenographer were all in court Tuesday, ready to roll on Marcus Smith's trial for attempted murder.
But there were no jurors or witnesses, and that didn't sit well with Judge Jack Durkin, who took the prosecutor's office to task for the absences and reluctantly granted yet another continuance in Smith's often-delayed case, which is now set for trial in February.
Smith, 26, of Halleck Street, faces three counts of attempted murder in a 1995 shooting outside a house on Pennsylvania Avenue on the city's North Side.
The case was delayed in the beginning because of unrelated assault and robbery charges against Smith in Pennsylvania. He was convicted of those charges in August 2000 and sentenced to 10 to 25 years in prison.
Smith was then brought back to Mahoning County to stand trial on the local charges. The case has been set for trial many times, but has been continued for various reasons.
A trial began in March 2002, but Judge Durkin declared a mistrial because of problems that arose during jury selection.
Another trial date was in July, but prosecutors asked for more time to locate and interview more witnesses they'd just found out about.
The matter then was set for trial Tuesday, which is when the latest problems arose.
"This case has a sordid history, to say the least," the irritated judge said.
Part of the problem, he said, is that the case has been shuffled among several assistant prosecutors.
Misunderstanding
"There was a misunderstanding over who was to try the case," Prosecutor Paul Gains said. "I've taken steps to remedy that problem and it's not going to happen again, I can tell you that."
Gains said his office is short-handed because two assistants are off sick and one resigned recently to take a job in Akron. As a result, prosecutors are left scrambling to fill in the gaps, which is what apparently caused Tuesday's confusion.
The constant string of delays also upsets defense attorney Louis DeFabio, who said it's time for prosecutors to drop the charges against Smith.
"There comes a point when lack of diligence turns into lack of faith, and I am suggesting that we are long past that point," DeFabio said. "This man has been sitting in the county jail for two years waiting for a trial that he can't seem to get."
DeFabio and Judge Durkin were angered that the prosecutor's office had not subpoenaed any witnesses for Tuesday, even though the trial date was set four months ago.
No jury
"If we had a jury, I would call them down here and get this case going, witnesses or not," the judge said. If prosecutors could not put on a case, the charges would have been dismissed.
There were no jurors because no one told the jury commissioner to bring them in, the judge said, again criticizing the prosecutor's office.
DeFabio said Smith initially waived his constitutional right to a speedy trial, but in October 2000 wrote a letter to the court asking that he be brought to trial within 180 days.
That letter, DeFabio said, should serve as an official revocation of his speedy trial waiver, meaning that the state's obligation to bring Smith to trial expired more than a year ago. He intends to file a formal motion to dismiss the charges.
Also, DeFabio said he's never received information from prosecutors about the new witnesses who were cited as the reason for the delay four months ago.
"Those witnesses have moved and can't be located," Gains said. "It's been frustrating for us, too."
bjackson@vindy.com