CAPITAL MURDER APPEAL Gains action disappoints ex-assistant

Two former co-workers don't agree on who was in charge of the appeal.
By DEBORA SHAULIS
VINDICATOR STAFF WRITER
YOUNGSTOWN -- A former Mahoning County assistant prosecutor says she's "hugely disappointed" in her former boss, Prosecutor Paul J. Gains, who said her typographical error led to a missed deadline to appear before the Ohio Supreme Court in a capital murder case.
"If anyone wants to take responsibility, it's me," Gains said Monday. "I'm the boss."
That comes a little late for Atty. Greta L. Johnson of Akron. "The way he threw me under the bus is appalling," she said, also Monday.
Last week, the Ohio Supreme Court ruled that the Mahoning County prosecutor's office can't participate in any oral arguments when justices review the case of John Drummond Jr. later this month. Drummond was sentenced to death in February 2004 after being convicted of killing 3-month-old Jiyen C. Dent Jr. of Youngstown, who was sitting in a baby swing in the living room of his family's East Side home when shots from an assault rifle were fired into the house.
Drummond also was sentenced to 20 years in prison for the attempted murders and felonious assaults on the baby's parents, eight years in prison for firing a weapon into a house and three years for using a firearm.
Appeals are mandatory in death-penalty cases.
Johnson worked on criminal appellate cases in the Mahoning County prosecutor's office for about five months, until early 2005. She is now an assistant prosecutor in Summit County.
What Gains said
Gains had said he and his staff relied on Johnson's departing note about the status of various cases. She wrote that the deadline to file briefs in Drummond's case was last April 21 when it actually was April 11.
"Should we have relied upon it? In hindsight, no," Gains said Monday.
The prosecutor's office was working under budget cuts after a 0.5-percent county sales tax was defeated by voters in November 2004. "This is what happens when you're short-staffed," Gains said.
Johnson's intention in noting the Drummond appeal was to let her successor know that county Assistant Prosecutor Timothy E. Franken, and not she, was handling the matter. "Shame on them for relying on my note," she said.
Johnson takes responsibility for the wrong date. "It's upsetting to me to think I had any small part in this," she said.
Franken, who is criminal division chief, was one of two prosecutors in Drummond's trial. Johnson didn't know how to write the brief for the Supreme Court, Franken said, so he wrote the first draft and forwarded it to Gains. Franken said he didn't plan to appear before the Supreme Court.
Atty. John P. Laczko, Drummond's appellate lawyer, called Johnson in November 2004 to ask for cooperation in seeking an extension of time to file briefs with the Supreme Court. "If I'm in charge of the case, why would she be giving consent?" Franken asked.
Johnson said she agreed to a continuance out of professional courtesy and before Laczko filed his briefs. Once those briefs were filed and it was the prosecution's turn to respond, "It was Tim's case," she said, adding that she's frustrated by Franken's "lack of professionalism."
What's changed
The new appellate lawyer now uses a computerized calendar system to keep track of important dates so another deadline isn't missed, Gains said.
Franken doesn't believe the prosecution's inability to argue before Supreme Court justices will be detrimental. The Supreme Court has read written briefs from the prosecutor's office, and a staff attorney will attend the hearing, he said.
Like Gains, Johnson is hopeful that the Supreme Court will not find any errors that would entitle Drummond to a new trial.
Franken is "very confident" that the Supreme Court will uphold Drummond's conviction. "It was a well-run trial," he said.
shaulis@vindy.com