YOUNGSTOWN Attorney: Client was denied a speedy trial

If the judge doesn't dismiss the 1995 shooting case, it is set for trial next week.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- Atty. Louis DeFabio says prosecutors dropped the ball and should also have to drop criminal charges against Marcus Smith.
But Timothy Franken, chief assistant prosecutor, says DeFabio is using legal trickery to beat the rap for Smith.
Judge Jack Durkin of Mahoning County Common Pleas Court will decide soon which side is right in the case that is set for trial Wednesday.
Smith, 27, is accused of spraying bullets at a crowd of people outside a Pennsylvania Avenue house in 1995. Three people were wounded, including a man whose injuries left him a quadriplegic.
32 delays
The trial has been delayed 32 times since 1995, mostly because Smith had been in Lawrence County, Pa., where he faced unrelated assault and robbery charges. He was convicted of those charges in August 2000 and sentenced to 10 to 25 years in prison.
On May 4, 2000, Smith asked to be brought to Mahoning County for trial on the local charges. Under a federal law called the Interstate Agreement on Detainers, prosecutors had 180 days from that date to bring him to trial, DeFabio said.
He said it took nearly that long for authorities to return him to the county. To allow more time to prepare for trial, Smith agreed to 90-day waiver of the time limit, which meant his trial had to be no later than Feb. 1, 2001.
Because that deadline has long since passed, DeFabio filed a motion in June asking that the charges be dropped. A hearing on the motion was Thursday.
DeFabio said Smith's waiver was done orally during a hearing in October 2000, and that he never signed anything in writing.
When the judge's entry from that hearing was put on the books, it said only that Smith had waived his right to a speedy trial and included nothing about a 90-day condition.
Waiver debated
Franken said courts speak through their judgment entries, so prosecutors operated on the assumption that the speedy trial limit was waived unconditionally.
DeFabio said the law requires that a waiver be "expressed in open court," not a judgment entry. The fact that Smith said it in open court should suffice, he said.
Franken said that if DeFabio noticed a discrepancy between what happened in court and what appeared in the judgment entry, he was obligated to notify the court and move to have it corrected. By remaining silent, he effectively waived the speedy trial requirement.
He said DeFabio is using an "honest misstatement" in the judgment entry to wrangle a dismissal of the charges against Smith.
Judge Durkin said he will take time to mull the arguments made by the lawyers during Thursday's hearing and to read their written arguments, before ruling on DeFabio's motion to dismiss the charges.
bjackson@vindy.com