Rape case declared a mistrial

‘Disappointed, but confident’ in her case, the prosecutor will likely seek a new trial.

By PETER H. MILLIKEN

VINDICATOR STAFF WRITER

YOUNGSTOWN — A hung jury produced a mistrial in the case of Nicholas C. Congemi, who would have faced a mandatory life prison term if convicted of any of three counts that alleged he raped a 10-year-old boy.

Judge James C. Evans, of Mahoning County Common Pleas Court, declared the mistrial late Wednesday after three full days of deliberations failed to produce a verdict on any of the rape counts or the single count of gross sexual imposition.

The judge declared the mistrial after the forewoman of the jury said she didn’t believe further deliberations today would produce a unanimous verdict on any of the four counts.

Dawn Krueger, assistant county prosecutor, said she would likely seek a new trial. She said she was “disappointed, but still confident in my case.”

Defense lawyer John Shultz said there was no physical evidence presented. The lack of physical evidence, and the jury’s need to rely on testimony from the accuser and the defendant, made the case difficult for the jury to decide, Shultz said, citing what he termed the “questionable credibility” of the prosecution’s witnesses.

The trial of Congemi, 27, of Meadowbrook Avenue, began May 14, and the jury of seven women and five men began its deliberations Friday afternoon. Conviction on the gross sexual imposition count, in which the same boy was the accuser, would have carried a one- to five-year prison term.

Congemi invited the youngster into his residence to get paid for grass cutting, told the boy to disrobe and fondled the boy’s genitals, with the sexual behavior escalating from there later in the summer of 2002, the prosecution said. The following year, the boy declined the grass-cutting job and reported the sexual encounters to his parents, who called police, the prosecution said.

Defense attorney’s response

Shultz said his client was innocent — and guilty only of “being a fool” and being manipulated. Congemi helped finance many activities of the boy’s family, co-signing for a vehicle purchase for one family member and paying $50 toward a trampoline for the family’s children, Shultz said.

After the judge declared a mistrial, Shultz objected to a member of the prosecutor’s victim-witness advocacy staff calling the Youngstown Police Department to complain about the presence of the defendant’s brother, Patrolman Anthony Congemi, who had been a defense witness, in uniform with the defendant and his family outside Judge Evans’ court during the jury deliberations.

Shultz, who said he didn’t know the caller’s name, added that defense lawyers don’t object when uniformed police officers, who have served as prosecution witnesses, sit outside the courtrooms during jury deliberations.

Judge Evans said he’d discuss the matter with Prosecutor Paul Gains and the victim-witness office, and that any victim-witness office concern of this type should have been addressed first to the court. Linda Cappelli, director of the victim-witness office, could not be reached to comment.

The delays in prosecution of the case stemmed from a change in defense lawyers, multiple postponements requested by the defense and Krueger’s maternity leave, Krueger said.