COLUMBUS Brown appeals murder verdict

The attorney argued that one juror was not comfortable with the verdict.
By MICHELE C. HLADIK
VINDICATOR CORRESPONDENT
COLUMBUS -- A Youngstown man's conviction and death sentence for the 1994 shooting deaths of two store clerks should be overturned because of problems with jury deliberations, Atty. John Juhasz argued before the Ohio Supreme Court Tuesday.
"This verdict is simply not reliable," he said.
Juhasz, the Youngstown lawyer representing Mark Brown, said there were several errors during the original trial, including the trial court's incomplete jury instructions and the prosecution's references to a prior robbery.
"One of the costs of our legal system is that sometimes we have to do things over," Juhasz told the justices.
As inconvenient and expensive as it may be, the case should have ended with mistrial or a lesser sentence, he said.
Who was killed
Brown was convicted in the shooting deaths of Hayder Al-Turk and Isam Salman, while they worked as clerks at the Midway Market on Elm Street on Youngstown's North Side.
According to court reports, he was sentenced to death for the murder of Salman and received a life sentence with the possibility of parole in 30 years for the murder of Al-Turk.
Juhasz maintained that one of the jurors was not comfortable with the verdict and when polled admitted she had compromised with other jurors and the final decision was not the way she would have voted.
He argued that is one area where judicial mistakes were made because of inexperience.
"I just don't think he knew how to handle this situation," he said.
According to Juhasz, the jury was sent back to deliberate a second time and quickly arrived back in court with the same verdict. This time the previously dissenting juror said she agreed with the verdict.
He said the judge never questioned the juror as to the situation that caused her to change her vote and he never instructed the jurors before the second deliberation that they needed only to try, but did not need a unanimous verdict.
Assistant Mahoning County Prosecutor Janice O'Halloran represented the state before the high court.
Doesn't agree
She said the judge did provide proper instructions and added the juror knew if she had a problem she could speak up.
"She was obviously a strong enough juror to say there was a problem the first time," O'Halloran said.
O'Halloran also said she believes the trial court could have declared a mistrial but did not think it was necessary and acted within its discretion.
Chief Justice Thomas Moyer said he believed it wouldn't have taken much time for the judge, lawyers and juror to meet in the judge's chambers to find out if there was a problem.
He questioned whether the high court should instruct trial judges of that option should similar situations arise in the future.
But O'Halloran said she did not believe that would be necessary.
Helping the judge
Justice Paul Pfeifer said the prosecution should have stepped in to help instruct the judge. He suggested O'Halloran could instruct prosecutors in her office to help a judge in that situation.
"They can lead the judge," he said.
Evidence from a separate crime before the murders was also mentioned at the murder trial.
At the murder trial, prosecutors introduced information that Brown was alleged to be involved in a car theft six weeks before the murders. Brown was never charged in the car theft.
According to O'Halloran, the weapon used in the murders was stolen during the car theft and in both cases the assailant wore a bandana around his face and brandished a gun.
Lawyer's discretion
She said the law allows for "other acts" evidence to be used at trial at the lawyer's discretion. She also said one side cannot tell another side how to handle a case.
"The bottom line is the law permits it," she said.
But according to Juhasz, the connection between the car theft and the murders was very remote and was used to set the stage that helped convict his client.
The Supreme Court took the matter under advisement.