APPEALS COURT New trial ordered for man convicted of murder in '02

The Oak Street man won't be set free, but he'll get a new trial.
By BOB JACKSON
VINDICATOR COURTHOUSE REPORTER
YOUNGSTOWN -- The murder conviction of a city man has been reversed and a new trial ordered for him.
The 7th District Court of Appeals ruled that Pernell Harrison's conviction should not stand because the trial court did not strictly comply with the law in having his case decided by a judge instead of a jury.
Harrison, 42, of Oak Street, is serving a 15-year sentence for the 1998 murder of his live-in girlfriend, 36-year-old Ada Hill. The victim died after being shot in the chest in the basement of the couple's Oak Street home.
Judge James C. Evans of Mahoning County Common Pleas Court heard the case and rendered the verdict.
Harrison appealed his July 2002 conviction and sentence, saying he hadn't waived his statutory right to a jury trial. Under Ohio law, criminal defendants can opt against having their case heard by a jury and allow the judge to hear and decide the matter instead.
No written record
In an eight-page decision, Judge Gene Donofrio of the appellate court said there is no written record that Harrison actually did waive his right to a jury trial.
He said that law requires waiver of a jury trial be done in writing, signed by the defendant and made a part of the court record. Though there is a document indicating that Harrison waived his right to a speedy trial, there is none to indicate he waived a jury trial, Judge Donofrio wrote.
"Strict compliance with [the law] is necessary for a waiver of a right to a jury trial," the decision says. "If the record does not indicate strict compliance, the trial court is without jurisdiction to try the defendant without a jury."
"While it could seem that to reverse a murder conviction on what could be perceived as a technicality is unacceptable, we take guidance from the Ohio Supreme Court," Judge Donofrio wrote. Judges Cheryl Waite and Mary DeGenaro concurred with his opinion.
Disagrees with ruling
Assistant Prosecutor Jay Macejko disagreed with the decision, and said a transcript of a January 1999 hearing makes it obvious that Harrison intended to waive a jury and have his case heard by Judge Evans.
"Unfortunately, this decision elevates form over substance," Macejko said. "We'll look at this again and see that justice is done."
Atty. Damian Billak, who represented Harrison in the appeal, said the reversal is good news, although Harrison still could face another trial on the same charge.
Billak said once Harrison is returned to the county jail from prison, he will ask that Harrison be allowed to go free on bond until he gets a new trial.
bjackson@vindy.com