YOUNGSTOWN 8-year-old shooting trial delayed again

The defense attorney says the charges should be dismissed.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- For the 32nd time, the trial of a Halleck Street man accused of shooting at a North Side house with gunfire eight years ago has been postponed.
Jury selection was to begin Monday in Mahoning County Common Pleas Court, where Marcus Smith faces charges of attempted murder and improperly firing a gun into a house.
Instead, Judge Jack Durkin postponed the trial because defense attorney Louis DeFabio filed a motion Monday morning to dismiss the charges.
DeFabio said he intended to file the motion last week, but could not because of computer and technical problems at his office.
He said he notified the judge and prosecutors, though, that the motion was coming.
"Here we are, with schedules and calendars blocked off and ready to go. We have 40 jurors sitting upstairs waiting to be called in," Judge Durkin said. "It is very disturbing to me that, here we are again, entertaining another motion to continue."
Smith, 27, is accused of firing at people outside a Pennsylvania Avenue house in 1995.
Three people were hit, with one of them suffering injuries that have left him in a wheelchair.
Reasons for delay
The case was delayed in the beginning because of unrelated assault and robbery charges against Smith in Lawrence County, Pa.
He was convicted of those charges in August 2000 and sentenced to 10 to 25 years in prison.
Smith was returned to Mahoning County in October 2000 to face the local charges and has been in the county jail since then, awaiting trial.
In his 35-page motion, DeFabio says prosecutors failed to bring Smith to trial within the required time limits. He said Smith agreed to only a limited waiver of his right to a speedy trial, which expired Jan. 10, 2001.
Because of that, DeFabio said the charges against Smith should be dismissed.
Timothy Franken, chief assistant prosecutor, said he hadn't seen DeFabio's motion but objected to the postponement. He said the victims have waited eight years for the matter to be tried, and deserve closure.
Judge Durkin agreed with Franken but said he has to balance the victims' right to closure against Smith's right to a fair trial. He said a hearing will be within five weeks for lawyers to argue DeFabio's motion to dismiss the charges.
The judge said 17 of the delays were requested by the defense, noting that some of them were because Smith was incarcerated in Pennsylvania while charges were pending there. Four delays were requested by prosecutors, two were requested jointly by both sides and seven were because the court was unavailable for trial.
One delay was caused after a trial began in March 2002 but was aborted and a mistrial declared because of problems that arose during jury selection.
bjackson@vindy.com