By Peter H. Milliken
The rationale for placing a key, longtime assistant Mahoning County prosecutor on paid administrative leave remains a mystery a week after his leave began.
Paul J. Gains, county prosecutor, confirmed Thursday afternoon Martin P. Desmond remains on leave, but he declined to explain why or say whether Desmond will have a hearing on the matter.
“I am not commenting on Mr. Desmond,” Gains said.
Desmond, who joined the prosecutor’s office in 2004 and has prosecuted high-profile murder cases in recent years, could not be reached for comment Thursday afternoon.
As of Thursday afternoon, The Vindicator still had not received the documents from Desmond’s personnel file, for which it made a public records request Monday morning, including his job application and any notices of commendation or discipline.
Gains again referred a reporter to a Cleveland lawyer, Todd Raskin, who Gains said is redacting nonpublic information from the documents before emailing them to The Vindicator.
“The [Ohio] Supreme Court has said 30 days is reasonable” as a time frame for compliance with public records requests, Gains said, echoing the 30-day time period Raskin cited Wednesday.
Gains said, however, “I’m sure you’ll get them long before 30 days has passed.”
Raskin told The Vindicator on Wednesday he was performing the redactions and would cite legal authority for them, but he said he couldn’t guarantee The Vindicator would have the documents this week.
Gains said Tuesday Raskin hoped to “review the file and make any redactions” and release the documents by Wednesday afternoon.
“I’m sure he’s going to release them as soon as he’s able to complete his review of them,” Gains said Thursday.
Gains said he sought “a second opinion” from Raskin, who works for the County Risk Sharing Authority of Ohio, a property and liability risk-sharing pool sponsored by the County Commissioners Association of Ohio.
Gains refused to comment on whether there’s any connection between Desmond’s leave and a soon-to-be-dismissed federal civil lawsuit by a former witness in a dismissed murder case.
Kalilo Robinson, who was held as a material witness in the murder case of Marquan White, sued Gains, assistant prosecutors Dawn Cantalamessa and Shawn Burns, and the county, in federal court, alleging wrongful arrest and malicious prosecution.
The suit alleged Robinson, who invoked his right to remain silent under the 5th Amendment to the U.S. Constitution during a pretrial hearing in the White case, was indicted on tampering with evidence and obstructing justice charges based on “misrepresentation of facts” to a county grand jury.
Robinson was jailed for several days until his lawyer secured his release through the 7th District Court of Appeals. The charges against Robinson were later dropped.
A March 22 federal court docket entry says the civil suit will be dismissed and that U.S. District Court Judge Benita Y. Pearson will issue an opinion and order explaining why.
No such opinion and order had appeared on the docket by Thursday afternoon.
In December, prosecutors dismissed the case against White, who had been accused of killing Antwon Lee Martinez, 17, in November 2014 on the city’s North Side.
Judge Pearson said the civil lawsuit would be dismissed after Gina DeGenova Zawrotuk, an assistant county prosecutor, filed a motion to dismiss it because it failed to state “a claim upon which relief can be granted.”
“To the extent that plaintiff’s malicious prosecution and false imprisonment claims against any assistant prosecutor are based upon their decisions to charge, or charging and dismissing the charges against plaintiff, plaintiff’s claims against them are barred by state law sovereign [governmental] immunity,” Zawrotuk argued.
The suit named Cantalamessa as a defendant, individually and in her official capacity.
“So strong is the protection of absolute prosecutorial immunity that impure and malicious motives will not subject a prosecutor to civil liability,” Zawrotuk wrote.
Individual capacity claims against assistant prosecutors “are barred by the doctrine of absolute prosecutorial immunity,” she added.