Public defender appeals decision not to grant Brown a new trial

By Peter H. Milliken

YOUNGSTOWN — The Ohio Public Defender’s Office has filed a notice of appeal of Judge Maureen A. Sweeney’s decision not to grant a new trial to Mark Aaron Brown, a defendant in a 1994 double murder, who is scheduled to be executed Feb. 4.

The notice, filed Friday with the 7th District Court of Appeals, challenges the Mahoning County Common Pleas Court judge’s Wednesday ruling.

Judge Sweeney issued her decision after a two-day hearing on the public defender’s motion for a new trial based on newly discovered evidence.

In her ruling, Judge Sweeney found that the testimony given in this month’s hearing by two witnesses, who said they lied under oath in Brown’s trial almost 16 years ago, was not credible.

A jury convicted Brown of the Jan. 28, 1994, murders of Isam Salman, owner of the Midway Market on Elm Street, and Hayder Al-Turk, a clerk in that convenience store. Both victims were fatally shot in the head in the North Side store.

Brown’s request for a new trial was based on testimony by Myzelle Arrington and Marcus Clark, who, as juveniles, testified against Brown in his trial.

Both men said they lied in the trial because they wanted to gain favor with police and prosecutors, who Arrington and Clark contend told them they could be charged in the homicide case.

In this month’s hearing, Clark said Brown shot only one of the victims, and another man, known only as “Boonie,” shot the other victim.

The public defender’s appeal contains a request for a hearing before a three-judge panel of the appellate court. A hearing will be granted, but no date has been set for it, said Robert Budinsky, appeals court administrator.

“It’ll be given most-expedited consideration,” Budinsky said. “Because it’s a capital case, it gets the highest priority.”

The public defender’s office has filed with the Ohio Supreme Court a request for a stay of the Feb. 4 execution, but the top court hasn’t ruled on that request.

Friday’s appeal of Judge Sweeney’s ruling is before the 7th District Court of Appeals in Youngstown because the murders predated a 1995 change in state law that sent such appeals in capital cases directly to the Ohio Supreme Court, Budinsky said.