Ohio Supreme Court lets appeals court ruling for retrial of Joaquin Hicks stand in case of murder and robbery of Cleveland Clinic employee

Joaquin Hicks

Jeremy Pechanec

Cuyahoga County Court of Common Pleas Judge Daniel Gaul

Jory Aebly

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By Kathy Wray Coleman, Editor(www.kathywraycolemanonlinenewsblog.com) and (www.clevelandurbannews.com)

(kathy@kathywraycolemanonlinenewsblog.com)

The Ohio Supreme Court last week rejected a request by Cuyahoga County Prosecutor Bill Mason to hear an appeal of a state appellate court's decision for a retrial of Joaquin Hicks, sending the case back to the courtroom of Cuyahoga County Court of Common Pleas Judge Daniel Gaul for another trial in the tragic case of a robbery of two young Cleveland Clinic employees that turned to murder.

And the saga is laced with recantation letters from some alleged witnesses against Hicks that were prosecuted too and are also serving time in prison, coupled with claims by defense counsel and the Hicks family that the wrong man was targeted, and railroaded, partly because of Gaul's negligence and prejudicial behavior at trial.

Mason spokesperson Maria Russo said the county prosecutor declined comment.

The retrial order that Mason unsuccessfully sought to overturn by the Ohio Supreme Court was issued this summer by a three-judge panel of the Ohio Eighth District Court of Appeals of judges Melody Stewart, Mary Boyle and Mary Eileen Kilbane. The all female panel of all Democratic judges said that Gaul abused his discretion at trial. They said that he prejudiced the case when he did not do an inquiry on a prejudicial contention made before the jury by then Assistant Cuyahoga County Prosecutor Dan Cleary that the testimonies of witnesses for Hicks were allegedly influenced in his favor by his attorneys.

Gaul, who has no Democratic primary opponent, will face Republican Edele Passalacqua in Nov. as he seeks reelection to the bench.

But Passalacqua is not just any ole criminal defense attorney, she is Hicks' aggressive and determined trial lawyer in the case, along with John Paris, who is just as vivacious, and all the more convinced that Hicks is innocent.

And both want Gaul off the case, as does Hicks' family.

"He said that he has no comment," said Gaul's bailiff when asked if it were true that the judge had allegedly recused himself from presiding over the controversial matter as family members of Hicks had claimed, though the case docket does not reflect it.

A spokesperson for the Hicks family said that lawyers for Hicks said Gaul plans to recuse himself when the case returns to his docket and that if and when he does they call on Cuyahoga County Court of Common Pleas Judge Nancy Fuerst to choose his replacement in the case by random draw.

Fuerst often takes the unconstitutional privilege of personally handpicking judges to replace those in the 34- member general division of the Cuyahoga County Court of Common Pleas that she leads that recuse themselves from cases, though if the Ohio Supreme Court removes Gaul on an affidavit of prejudice it can, by virtue of the Ohio Constitution, assign a visiting judge, or let Fuerst decide. And data show that in such instance she will sometimes reassign the case to another judge by computer generated random draw when the public is looking, as in the replacement of Shirley Strickland Saffold with Dick Ambrose in the Anthony Sowell Capital Murder Case, but often personally handpicks a judge in most other cases, activity that community activists say is prejudicial and unconstitutional in violation of the due process clause of the Fourteenth Amendment.

"We thank the community and our attorneys for the support and are glad that the Ohio Supreme Court let the decision of the appellate court stand," said Denise Taylor, a community activist and Hicks' aunt. "We have asked the attorneys to file an affidavit of prejudice against Judge Gaul for the Ohio Supreme Court to hear to remove him as judge in the case and we want this case dismissed and Joaquin brought back home because he is innocent."

Just off of a stayed six month suspension last year for unethical behavior against Blacks that come before him, Gaul gave Hicks 61 years to life in prison as the alleged ring leader that planned a robbery that led to the execution style murder of Jeremy Pechanec, and the attempted murder of Jory Aebly two years ago in an outdoor park plaza across from Schorcher's, then a downtown Cleveland night club.

But Hicks was never accused of being the shooter, which heightened the implications of Gaul's 61-year prison sentence.

Hicks, now 31, had been charged in Sept 2009 in an eight-count indictment alleging one count of aggravated murder, two counts of kidnapping, two counts of aggravated robbery, and one county of attempted murder, all having gun specifications of one to three years. A jury found him guilty of all but two counts of aggravated murder.

He testified at trial that he was not even at the scene of the crime and was with a girlfriend that night, an alibi backed by family members at trial, and a waitress at the night club could not finger Hicks when she took the stand for the defense. And Hicks' lawyers argued at trial that he had no reason to rob anyone because he was fresh out of prison on a previous robbery conviction and had just received a $23 thousand life insurance policy on his mother's death.

Trial testimony revealed that Pechanec and Aebly went outside of the bar and across the street to the plaza to buy marijuana and were allegedly robbed by the group of Black men, and eventually shot by Ralfael King, a teenager at the time. Both were shot in the head, and while the bullet killed Pechanec, Aebly survived in what doctors branded a miracle. He did not completely recover, though he took the stand and testified against Hicks.

Unlike Hicks, the three men and the teen accused of crimes along with Hicks all took plea deals for their roles, after Hicks was convicted. They were also sentenced by Gaul, claiming afterwards that the controversial judge broke promises on plea deals for lessor time.

Shooter Ralfeal King, 17 at the time but prosecuted as an adult, was sentenced to 46 years to life for aggravated murder, attempted murder, aggravated robbery and kidnapping. And Perry King, then 20, a lesser accomplice in the crime, was sentenced to 12 years in prison for driving the getaway car.

Cornelius King, then 26, who pleaded guilty to murder for his actions in the crimes, was sentenced to 15 years to life in prison. He testified that Hicks organized the robbery that led to the murder and attempted murder, a claim Hicks denied under oath and said was leveled in exchange for plea deals that the others accused in the scenario were to receive.

Reginald Day, who also pleaded guilty to murder, got 21 years to life.

In addition to having racial implications since Hicks and the other alleged assailants are Black, Aebly is White, and Pechanec was White, the case has been complicated since Cornelius King, who testified against Hicks at trial, and Perry King, both related to each other and to shooter Raphael King, and Day, have recanted in writing for Gaul.

They say now that Hicks was not at the scene of the crime that night and that they had allegedly been manipulated either by police, prosecutors or others to say otherwise, whether on or off record. Gaul, however, denied Hicks' motion for a new trial on those letters, after holding a hearing.

Reach Kathy Wray Coleman by email at kathy@kathywraycolemanonlinenewsblog.com, by telephone at 216-932-3114, and by comments from you on this blog that would not be posted and are screened initially.