Mason Loses Appeal Against Judge Russo And Must Produce Alleged Confidential Informant In Activist Art McKoy's Drug Case
Cuyahoga County Prosecutor Bill Mason 
Community Activist Art McKoy
By Kathy Wray Coleman
Editor of the Determiner Weekly.Com and the
Kathy Wray Coleman Online News Blog and Media Network
(Cleveland, Ohio Area News)
In a 13 page opinion released on Thursday, a three-judge panel of the Ohio Eighth District Court of Appeals unanimously upheld an order issued last year by Cuyahoga County Common Pleas Judge Nancy Margaret Russo for prosecutors to immediately give up the identity before trial of an alleged confidential informant in the pending drug case against Community Activist Art McKoy.
On behalf of the State of Ohio county prosecutor Bill Mason had appealed Russo's decision arguing that the judge abused her discretion in granting McKoy's motion for identity of the alleged informant and that the alleged informant and his or her family would be subjected to physical harm unless prosecutors could withhold his or her identity from defense counsel until after the trial begins, which is on hold due to the appeal. McKoy's attorneys told the appellate panel in a brief and during oral arguments before it held two weeks ago that failure to release the name of the alleged informant before trial would deny McKoy the right to a fair trial by preventing full preparation for it and that no evidence exits to even suggest that McKoy would harm the so-called witness simply by virtue of being charged with a crime.
"We recognize that in many cases the State has a privilege to withhold from disclosure the identities of those who give information to the police about crimes,"
wrote Ohio Eighth District Court of Appeals Judge Colleen Conway Cooney, in authoring the opinion of the three- judge appellate panel that also included Judges Larry Jones, who is Black, and Mary Eileen Kilbane. "However, the privilege must give way where disclosure of the informant’s identity would be helpful to the accused in making a defense to a criminal charge."
A Cuyahoga County Grand Jury last year indicted McKoy, 65, on one count of permitting drug abuse, a fifth degree felony, in violation of R.C. 2925.13(B), for allegedly witnessing a drug transaction at his now defunct "Superfly" barbershop in East Cleveland, Oh. If convicted, McKoy faces up to a year in prison.
The community activist who fights against police brutality, racism and other issues of public concern has pleaded not guilty and his seasoned attorneys, Rufus Sims and James Hardiman, both of whom are Black, say McKoy is innocent and is being targeted in alleged retaliation for his activism, a claim that prosecutors deny. On Thursday they celebrated a win relative to the rejection of the issue on appeal, not only for McKoy, but for all criminal defendants in Cuyahoga County, a disproportinate number of whom are Black.
Hardiman said that the appellate court ruling relieves McKoy of any stigmatizing determination that simply being accused of a crime brings confirmation that before even a trial can be had he is presumed to subject a potential witness for the prosecution to physical harm, and without any evidence whatsoever in support of the allegation.
"Obviously if a defendant is going to have a fair trial he or she has a right to know the identity of the witness and the nature of the evidence against him or her," said Hardiman in saluting the appellate court decision, which is also a feather in the cap of Judge Russo. A feisty judge among the 34 of them in the general division of the Cuyahoga County Court of Common Pleas, where felony cases and other legal matters are heard, Russo has a reputation for taking Mason's office to task in compliance with state law, the Ohio Rules of Criminal Procedure and the Local Rules of the Cuyahoga County Court of Common Pleas.
Hardiman said that he does not believe that prosecutors for Mason's office were motivated by racial animus in making a blanket assertion that his client might physically harm a potential witness for the prosecution, one they lost on, though Sims was angry as he left a session of oral arguments held before the appellate court panel two weeks ago. Looking visbly upset, he said that the attempt by prosecutors to withhold the identity of the alleged informant before trial on grounds of physical harm to him or her by McKoy, while without any evidence in support of the claim, was grossly unfair and illegal on its face.
Community Activist Earnest Smith, leader of the grassroots organization dubbed the Oppressed People's Nation, said that anytime a Black man is accused of physical harm of a potential witness without any evidence in support of the allegation race is at play since Black men are often feared by some members of mainstream society simply because they are Black and male.
"Race is at play here," said Smith. "The appellate court decision is a beautiful thing and a small victory. When you have a nine inch knife stuck in you and it is pulled out only three inches, we still have work to do to ensure fair trials for Black people in Cuyahoga County."
Masons' office said through a spokesperson that he has not decided whether a request for the Ohio Supreme Court to hear the case following the loss at the county appellate level will be made, though Hardiman said that any such appeal would lack merit.
"It would be absolutely frivolous," Hardiman said. "Prosecutors should either produce the alleged confidential informant or dismiss the case against Art McKoy."
Community Activist Art McKoy
By Kathy Wray Coleman
Editor of the Determiner Weekly.Com and the
Kathy Wray Coleman Online News Blog and Media Network
(Cleveland, Ohio Area News)
In a 13 page opinion released on Thursday, a three-judge panel of the Ohio Eighth District Court of Appeals unanimously upheld an order issued last year by Cuyahoga County Common Pleas Judge Nancy Margaret Russo for prosecutors to immediately give up the identity before trial of an alleged confidential informant in the pending drug case against Community Activist Art McKoy.
On behalf of the State of Ohio county prosecutor Bill Mason had appealed Russo's decision arguing that the judge abused her discretion in granting McKoy's motion for identity of the alleged informant and that the alleged informant and his or her family would be subjected to physical harm unless prosecutors could withhold his or her identity from defense counsel until after the trial begins, which is on hold due to the appeal. McKoy's attorneys told the appellate panel in a brief and during oral arguments before it held two weeks ago that failure to release the name of the alleged informant before trial would deny McKoy the right to a fair trial by preventing full preparation for it and that no evidence exits to even suggest that McKoy would harm the so-called witness simply by virtue of being charged with a crime.
"We recognize that in many cases the State has a privilege to withhold from disclosure the identities of those who give information to the police about crimes,"
wrote Ohio Eighth District Court of Appeals Judge Colleen Conway Cooney, in authoring the opinion of the three- judge appellate panel that also included Judges Larry Jones, who is Black, and Mary Eileen Kilbane. "However, the privilege must give way where disclosure of the informant’s identity would be helpful to the accused in making a defense to a criminal charge."
A Cuyahoga County Grand Jury last year indicted McKoy, 65, on one count of permitting drug abuse, a fifth degree felony, in violation of R.C. 2925.13(B), for allegedly witnessing a drug transaction at his now defunct "Superfly" barbershop in East Cleveland, Oh. If convicted, McKoy faces up to a year in prison.
The community activist who fights against police brutality, racism and other issues of public concern has pleaded not guilty and his seasoned attorneys, Rufus Sims and James Hardiman, both of whom are Black, say McKoy is innocent and is being targeted in alleged retaliation for his activism, a claim that prosecutors deny. On Thursday they celebrated a win relative to the rejection of the issue on appeal, not only for McKoy, but for all criminal defendants in Cuyahoga County, a disproportinate number of whom are Black.
Hardiman said that the appellate court ruling relieves McKoy of any stigmatizing determination that simply being accused of a crime brings confirmation that before even a trial can be had he is presumed to subject a potential witness for the prosecution to physical harm, and without any evidence whatsoever in support of the allegation.
"Obviously if a defendant is going to have a fair trial he or she has a right to know the identity of the witness and the nature of the evidence against him or her," said Hardiman in saluting the appellate court decision, which is also a feather in the cap of Judge Russo. A feisty judge among the 34 of them in the general division of the Cuyahoga County Court of Common Pleas, where felony cases and other legal matters are heard, Russo has a reputation for taking Mason's office to task in compliance with state law, the Ohio Rules of Criminal Procedure and the Local Rules of the Cuyahoga County Court of Common Pleas.
Hardiman said that he does not believe that prosecutors for Mason's office were motivated by racial animus in making a blanket assertion that his client might physically harm a potential witness for the prosecution, one they lost on, though Sims was angry as he left a session of oral arguments held before the appellate court panel two weeks ago. Looking visbly upset, he said that the attempt by prosecutors to withhold the identity of the alleged informant before trial on grounds of physical harm to him or her by McKoy, while without any evidence in support of the claim, was grossly unfair and illegal on its face.
Community Activist Earnest Smith, leader of the grassroots organization dubbed the Oppressed People's Nation, said that anytime a Black man is accused of physical harm of a potential witness without any evidence in support of the allegation race is at play since Black men are often feared by some members of mainstream society simply because they are Black and male.
"Race is at play here," said Smith. "The appellate court decision is a beautiful thing and a small victory. When you have a nine inch knife stuck in you and it is pulled out only three inches, we still have work to do to ensure fair trials for Black people in Cuyahoga County."
Masons' office said through a spokesperson that he has not decided whether a request for the Ohio Supreme Court to hear the case following the loss at the county appellate level will be made, though Hardiman said that any such appeal would lack merit.
"It would be absolutely frivolous," Hardiman said. "Prosecutors should either produce the alleged confidential informant or dismiss the case against Art McKoy."
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