Gains fails as a leader

Mahoning County Prosecutor Paul Gains should thank the political gods that he’s unopposed in his re-election bid this year. Otherwise, Gains would now be in full damage control, trying to save his campaign from imploding.

What did he do that was so egregious? The five-term prosecutor failed the test of leadership. Indeed, as the county’s chief lawyer, he had the chance to set an example for other officeholders; instead, he showed himself to be just another political dinosaur.

Too harsh? Consider this:

On Jan. 8, Gains’ chief assistant prosecutor, Nicholas Modarelli, wrote a letter to U.S. District Court Judge Solomon Oliver Jr. in support of Atty. Scott Cochran, who was facing sentencing after pleading guilty to a federal criminal charge.

Modarelli began the letter with this:

“I am the Chief Assistant Prosecutor for the Mahoning County Prosecutor’s Office.”

And as if to burnish his credentials, he used the official letterhead stationery from the prosecutor’s office. The stationery features a seal at the top, under which in bold uppercase letters is the name of the prosecutor, “Paul J. Gains,” and his title, “Mahoning County Prosecuting Attorney.”

Yet, when questioned about Modarelli going to bat for Cochran, who pleaded guilty to misbehavior in the presence of the court, Gains told Vindicator reporter Peter H. Milliken that his assistant was expressing a personal opinion and not that of the prosecutor’s office.

“As long as Nick Modarelli’s letter is truthful, and I have no reason to believe it isn’t, I don’t have a problem with Atty. Modarelli’s expressing his opinion,” Gains said.

Re-election a given

That’s the reaction of an officeholder who is all but guaranteed another four-year term. He has no Democratic or Republican opposition.

But it certainly isn’t the response Mahoning County residents expect from their government’s top lawyer.

There are several problems with what Modarelli did, and with the way Gains reacted.

First, by using the letterhead stationery to request leniency from the judge for Cochran, Modarelli could easily have been seen as echoing the sentiments of his boss, the county prosecutor.

Indeed, other than the words “allowing me the opportunity to express my opinions regarding Attorney Cochran,” no where in the letter does it clearly state that Modarelli was writing as an acquaintance of the defendant and not in his official capacity as the chief assistant prosecutor.

The second problem is the fact that a member of the prosecutor’s office interceded on behalf of a lawyer who not only practices in the area, but who was charged with failing to provide completely truthful testimony in a federal trial last year. Cochran and his law partner, Neil Atway, were defendants in the case.

Modarelli’s glowing recommendation prompts concerns about whether the prosecutor’s office can be objective if and when Cochran has a case before the Mahoning County Common Pleas Court.

Then there’s the matter of Gains’ blind spot when it comes to his employee. Rather than giving Modarelli a pass for his poor judgment in using the letterhead stationery and in going to bat for a lawyer charged in federal court, the prosecutor should have publicly lambasted his underling for overstepping his bounds.

Letters to judges on behalf of defendants facing sentencing are common practice. Family members, the clergy and community and business leaders lend their support to individuals they know. Not surprisingly, numerous letters were sent to Oliver on behalf of Cochran and Atway. However, they mostly were of a personal nature.

On the other hand, when a letter is sent on official letterhead stationery, the existence of a conflict of interest looms large. Modarelli told The Vindicator he does not have his own letterhead stationery because he doesn’t have a private law practice.

Has he not heard of computer software that could even create a coat-of-arms that he could use on his personal stationery?

Looking at the larger picture, Prosecutor Gains can’t have forgotten the controversy that arose in 2005 when three prominent area judges sent character/reference letters to U.S. District Court Judge Peter C. Economus on behalf of William Umbel, who pleaded guilty to conspiracy to possess with intent to distribute marijuana.

Umbel’s crime spree spanned eight years, during which time he accepted deliveries from others – 200 to 600 pounds of marijuana at a time – for his customers.

The letters to Judge Economus were from Judges R. Scott Krichbaum, Mahoning County Common Pleas Court; Robert A. Douglas Jr., Youngstown Municipal Court; and, Charles J. Bannon, who retired from the common pleas court but was active again on the bench.

Krichbaum, who said in his letter that he had known Umbel for 25 years primarily through the Pyatt Street Diner, but also from social encounters, described the defendant as polite and respectful.

“He is a man of intelligence, creativity and an outstanding work ethic,” Krichbaum wrote.

When asked by The Vindicator about the propriety of a judge interceding on behalf of a drug dealer, Krichbaum said, “I don’t know what he did ... I was subpoenaed to speak to his character, the letter was concerning his character. It wasn’t concerning what he did, particularly. Obviously, something like that [the letter] is not controlling on the judge, it’s a normal part of sentencing.”

Krichbaum noted that such letters or testimony are intended to give the sentencing judge a good picture of the defendant, not to influence in any way.

Judge Bannon wrote that he had known Umbel “for years and years” and that he was well known among personal friends and members of the Mahoning County Bar Association as a respected restaurant owner and businessman.

For some perspective, Umbel’s case was investigated by the Drug Enforcement Administration and overlapped the huge indoor marijuana farm on Marshall Street in downtown Youngstown that resulted in the indictment of Robert Arroyo and Joseph C. Pedaline, among others. Arroyo and Pedaline served time in federal prison.

The farm was said to be the largest indoor operation in the United States at the time.

In his letter on behalf of Umbel, Judge Douglas, who has since retired, described the defendant as “Mr. Mom” and said he had “demonstrated a very positive and loving relationship to his children on every occasion I witnessed him and his children.”

Douglas’ contact with Umbel was the result of an arms-length real estate transaction in October 2004. He added they had contact after the transaction ended.

So, there you have it. The more things change in politics in the Mahoning Valley, the more they stay the same.

Prosecutor Gains should have known better than to give his assistant a pass.