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Judge: Defendant will remain in jail
An appeal concerning the confession is before the Ohio Supreme Court.
YOUNGSTOWN — The judge in the capital murder case of Terrance Tate has overruled a defense motion that Tate be freed from jail.
The judge, however, has taken under advisement a prosecution motion to vacate another judge’s order suppressing Tate’s confession to police.
Judge R. Scott Krichbaum of Mahoning County Common Pleas Court made the announcements at the end of a Thursday hearing on the motions, saying he’ll soon rule on the prosecution’s motion.
Tate is charged with aggravated murder with a death-penalty specification in the fatal beating of Javonte Covington on his first birthday in April 2006. His trial is tentatively set for Nov. 4.
The judge noted the prosecution is appealing to the Ohio Supreme Court an August 2007 decision by Judge John M. Durkin, also of common pleas court, not to admit Tate’s confession into trial evidence.
The state’s highest court will decide soon whether to accept the matter for review.
Durkin, the judge previously assigned to the case, excluded that confession because he said city police failed to warn Tate of his right to remain silent before questioning him about the baby’s injuries while he was in police custody.
In June, the 7th District Court of Appeals upheld Durkin’s decision.
On Thursday, Krichbaum noted the prosecution says it has acquired other evidence against Tate since the appeals court ruled.
Martin P. Desmond, assistant county prosecutor, argued Krichbaum should vacate Durkin’s order because prosecutors didn’t receive from Durkin evidence that would have affected the outcome of the March 2007 hearing that judge held concerning suppression of the confession.
Although Tate’s defense lawyers received a copy of a letter Tate wrote to Durkin from county jail May 20, 2006, prosecutors didn’t obtain it until July 2008, Desmond said.
In that letter, Tate wrote he was “tricked” into confessing he beat the baby and he falsely told police he hit the boy in order to keep the boy’s mother from going to jail.
Tate didn’t make these claims in the suppression hearing, but he testified police used aggressive yelling and threatening techniques not mentioned in the letter, Desmond said.
Had the prosecution been able to use the letter to impeach Tate’s credibility at the suppression hearing, the outcome would have been different, Desmond argued.
“With all due respect to Judge Durkin, there was a mistake made here, and it did affect the outcome of this case — a death-penalty case. We have to remedy that, and the only remedy available is to revisit that suppression issue,” Desmond told Krichbaum.
“The state’s argument that a mistake was made here is made to further what is nothing more than a red herring ... The state has not proven this letter wasn’t received” by the prosecution, said Lynn Maro, one of Tate’s lawyers.
Maro added several prosecutors have handled the Tate case over its 2 1‚Ñ2-year duration, and she said the prosecutor’s office has a five-year history of saying it hadn’t received items her office faxed or hand-delivered to it.
Desmond also said prosecutors discovered a confession Tate made in a May 2006 telephone call from jail to his mother when they listened to tapes of jail phone calls this summer.
Tate’s other lawyer, John B. Juhasz, said Tate should be freed from jail unless the prosecution can produce newly discovered and admissible evidence it couldn’t have found earlier. Juhasz said the prosecution could have listened to the jail phone tapes long before this summer.
milliken@vindy.com