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Judge to stay on bench for trial
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Judge John Durkin listens to testimony - Terrance Tate, whose confession was suppressed by the 7th District Court of Appeals, 8:30 a.m. The prosecution is appealing the suppression to the Ohio Supreme Court. Tate faces the death penalty.
By Ed Runyan
Prosecutors won’t say whether they plan to take the matter further.
YOUNGSTOWN — The complicated death-penalty murder case against Terrance Tate may take an additional three to five months to proceed, but when it does, Mahoning County Common Pleas Court Judge John M. Durkin is likely to be presiding.
Judge Durkin ruled Monday that he will not grant a prosecution request that he step aside and allow the case to be reassigned to another judge.
The Mahoning County Prosecutor’s Office said last month that Judge Durkin should step aside because two recently discovered letters Tate wrote to the judge might be grounds for Judge Durkin to be called as a witness in the case.
But Judge Durkin said Monday he can see only two reasons why he might be called to testify — one being in regard to the practices in his office pertaining to letters from defendants, and the other being to speak to the authenticity of the letters.
But since he has no recollection of receiving either letter and because other people could be called to testify on those matters, he doesn’t believe there’s a reason to step aside from the case, he said.
He said that since his office has a standard practice of sending such letters to the prosecution and defense, he has not violated a legal canon that prevents a judge from having “ex-parte” (meaning one-sided) communications with a party in a legal action.
As a result, Judge Durkin said, he doesn’t believe there is any “appearance of impropriety” involving the letters.
Dawn Cantalamessa, an assistant county prosecutor, said the prosecutor’s office never received copies of letters Tate, 23, of Hilton Avenue, wrote to the judge from county jail in May 2006 and August 2007.
The May 2006 letter tells Judge Durkin that Tate gave police a false confession regarding his involvement in the death of 12-month-old Javonte Covington in April 2006 to keep the boy’s mother, April Ford, from going to jail.
In a phone call to his mother that prosecutors obtained recently, Tate said he took the blame for the child’s injuries because he believed he was only facing an assault charge and didn’t know the boy had died from his injuries.
The defense team of John Juhasz and Lynn Maro, but not the prosecution, received copies of the letters, the parties have said. Maro, however, said in a recent hearing before Judge Durkin that she thinks the prosecutor’s office has a “credibility” problem with regard to saying it never received documents that were properly faxed or hand-delivered.
During that same hearing, Cantalamessa said the prosecution could have used those letters during a hearing held in 2007 that resulted in Judge Durkin’s throwing out a confession Tate gave to police. The letter could also come into play during Tate’s trial, she said.
The prosecution appealed Judge Durkin’s decision on the suppression of the confession to the 7th District Court of Appeals, which agreed with Judge Durkin’s decision. The prosecution plans to ask the Ohio Supreme Court to review the matter also, said Rhys Cartwright-Jones, appellate counsel for the prosecutor’s office.
Juhasz said the case against Tate will remain on hold while the Ohio Supreme Court decides whether to hear the case. That is likely to set back Tate’s trial by three to five months, Yuhasz said.
Cartwright-Jones and Martin P. Desmond, assistant county prosecutor, said after the hearing they had no comment on Judge Durkin’s decision and no comment on whether the prosecutor’s office would take the additional step of asking the Ohio Supreme Court to take Judge Durkin off the case.
runyan@vindy.com