Mason Fights McKoy Drug Case In Ohio Supreme Court Seeking To Withhold Name Of Alleged Informant Not Produced In Dismissed Case Of Other Defendant
Cuyahoga County Prosecutor Bill Mason
Community Activist Art McKoy
By Kathy Wray Coleman, Editor of the DeterminerWeekly.Com and
the Kathy Wray Coleman Online News Blog and Media Network
Though community activist Art McKoy, 66, is still struggling to clear himself and his name of a fifth degree felony charge that accuses him of permitting the sale of cocaine and other drugs in his now defunct Superfly Barbershop in East Cleveland, the cases of the two barbers accused of dealing the alleged drugs are long over. All three were indicted in December of 2008 by a Cuyahoga County Grand Jury following a police raid at the barbershop. McKoy, himself, is not accused of dealing any drugs and has pleaded not guilty to the charge. The potential trial in his case is on hold pending the outcome of appeals relative to an outright fight between prosecutors and McKoy's attorneys on whether the name of the alleged confidential informant for the prosecution should be produced either before or during any trial, the latter position taken by Mason.
The case against Earl Nash, who pleaded not guilty to the charge that he dealt drugs out of McKoy's barbershop, was dismissed March 4 after prosecutors failed to produce an alleged confidential informant. And the case against Nash's former colleague, Leroy Sheets, who pleaded guilty early on, came to a close March 18 when following a judicial conviction he received a sentence of the 32 days in jail that he served after he was arrested in 2008.
A sticking point in the McKoy case is that the alleged confidential informant so not produced in Nash's since dismissed case is allegedly the same alleged person that Cuyahoga County Prosecutor Bill Mason and the attorneys for McKoy are fighting about in a pending appeal involving only McKoy that Mason seeks in the Ohio Supreme Court. The zealous prosecutor of Cuyahoga County, dubbed by some as the most powerful and untouchable person in the Cuyahoga County Democratic Party, is appealing to Ohio's high court following a ruling on February 18 by the Ohio Eighth District Court of Appeals that supports a prior decision around the so-called informant by Cuyahoga County Court of Common Pleas Judge Nancy Margaret Russo.
The presiding judge since the onset in a celebrated case that area activists and establishment types are closely watching, the controversial Russo had ordered team Mason to give up the name of the alleged confidential informant before trial so that McKoy's attorneys could prepare him for it. But Mason scoffed and then filed an appeal on the issue in the Eighth District Appellate Court emphasizing his position that relevant case law and the Ohio Rules of Criminal Procedure allow his office to simply certify, without any evidence whatsoever, that by virtue of McKoy being accused of a crime in itself he his presumed to put the alleged informant and his family in harm's way to the extent that his name and address should be withheld until three days into any trial. That disposition outraged McKoy's attorneys and the Eighth District appeals court found it preposterous at best.
"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 earlier this year in an opinion of the three- judge appellate panel that also included appeals 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."
In asking Ohio's high court to hear his and the state's loss of the state appellate court decision Mason again said that by virtue of the inherent certification power of his office as prosecutor the names of alleged confidential informants can be withheld until after any trial begins.
"In cases where an informant-witness will testify at trial, the name and address of the witness shall not be subject to disclosure if the prosecuting attorney certifies to the court that to do so may subject the witness or others to physical harm," Mason wrote last month in his brief to the Ohio Supreme Court.
McKoy's African-American legal team of the strong but temperamental Rufus Sims, an attorney representing alleged serial killer Anthony Sowell, and the brilliant and seasoned James Hardiman, who represented Black children and their families in the since resolved Cleveland schools desegregation case, is fighting tooth and nail for the activist whose activism around purported racism and alleged police brutality has repeatedly annoyed the status quo.
"Defendant-Appellee [McKoy]is a public figure and has long railed against the sale of drugs in the African American community. Defendant-Appellee chairs an organization publicly known as Black on Black Crime, Inc. and has emphatically denied that any drug transaction ever occurred in his presence or that he would ever knowingly permit drug sales from his establishment," Sims wrote in a response brief filed with the high court on May 4 that urges it to not hear the appeal sought by Mason's on behalf of the State of Ohio."It is not seriously disputed by the State of Ohio that the State has the obligation of disclosing the identity of an informant where such a disclosure would be helpful and beneficial to the accused in making a defense to a criminal charge."
Whether Mason is still fighting the McKoy case after failing to produce the alleged confidential informant against Nash and embarrassingly suffering a dismissal of that case by Russo simply to make life difficult for the outspoken community activist remains unanswered. But what is clear is that his office is seeking a ruling from Ohio's high court that state and municipal prosecutors can withhold the names of alleged confidential informants until after a trial starts simply by independently certifying potential harm. And the case at hand is not a fly by night one. Any decision on the merits if the case is heard by the seven Ohio Supreme Court Justices, one a Democrat and none of whom or Black, would impact criminal defendants statewide, a disproportionate number of whom are Black.
The Ohio Supreme Court hears less than 3 percent of the cases filed each year, and a decision on whether it will hear the McKoy case is expected this summer. The last leg of of state level appellate proceedings, it has discretion to hear or not hear an appeal in the category of the issues that Mason has raised based upon whether it is one of public or great general interest, or presents a constitutional question.
If convicted the popular McKoy faces up to a year in prison. His attorneys have challenged Mason to either produce the alleged confidential informant or suffer another case dismissal by Russo.
Community Activist Art McKoy
By Kathy Wray Coleman, Editor of the DeterminerWeekly.Com and
the Kathy Wray Coleman Online News Blog and Media Network
Though community activist Art McKoy, 66, is still struggling to clear himself and his name of a fifth degree felony charge that accuses him of permitting the sale of cocaine and other drugs in his now defunct Superfly Barbershop in East Cleveland, the cases of the two barbers accused of dealing the alleged drugs are long over. All three were indicted in December of 2008 by a Cuyahoga County Grand Jury following a police raid at the barbershop. McKoy, himself, is not accused of dealing any drugs and has pleaded not guilty to the charge. The potential trial in his case is on hold pending the outcome of appeals relative to an outright fight between prosecutors and McKoy's attorneys on whether the name of the alleged confidential informant for the prosecution should be produced either before or during any trial, the latter position taken by Mason.
The case against Earl Nash, who pleaded not guilty to the charge that he dealt drugs out of McKoy's barbershop, was dismissed March 4 after prosecutors failed to produce an alleged confidential informant. And the case against Nash's former colleague, Leroy Sheets, who pleaded guilty early on, came to a close March 18 when following a judicial conviction he received a sentence of the 32 days in jail that he served after he was arrested in 2008.
A sticking point in the McKoy case is that the alleged confidential informant so not produced in Nash's since dismissed case is allegedly the same alleged person that Cuyahoga County Prosecutor Bill Mason and the attorneys for McKoy are fighting about in a pending appeal involving only McKoy that Mason seeks in the Ohio Supreme Court. The zealous prosecutor of Cuyahoga County, dubbed by some as the most powerful and untouchable person in the Cuyahoga County Democratic Party, is appealing to Ohio's high court following a ruling on February 18 by the Ohio Eighth District Court of Appeals that supports a prior decision around the so-called informant by Cuyahoga County Court of Common Pleas Judge Nancy Margaret Russo.
The presiding judge since the onset in a celebrated case that area activists and establishment types are closely watching, the controversial Russo had ordered team Mason to give up the name of the alleged confidential informant before trial so that McKoy's attorneys could prepare him for it. But Mason scoffed and then filed an appeal on the issue in the Eighth District Appellate Court emphasizing his position that relevant case law and the Ohio Rules of Criminal Procedure allow his office to simply certify, without any evidence whatsoever, that by virtue of McKoy being accused of a crime in itself he his presumed to put the alleged informant and his family in harm's way to the extent that his name and address should be withheld until three days into any trial. That disposition outraged McKoy's attorneys and the Eighth District appeals court found it preposterous at best.
"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 earlier this year in an opinion of the three- judge appellate panel that also included appeals 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."
In asking Ohio's high court to hear his and the state's loss of the state appellate court decision Mason again said that by virtue of the inherent certification power of his office as prosecutor the names of alleged confidential informants can be withheld until after any trial begins.
"In cases where an informant-witness will testify at trial, the name and address of the witness shall not be subject to disclosure if the prosecuting attorney certifies to the court that to do so may subject the witness or others to physical harm," Mason wrote last month in his brief to the Ohio Supreme Court.
McKoy's African-American legal team of the strong but temperamental Rufus Sims, an attorney representing alleged serial killer Anthony Sowell, and the brilliant and seasoned James Hardiman, who represented Black children and their families in the since resolved Cleveland schools desegregation case, is fighting tooth and nail for the activist whose activism around purported racism and alleged police brutality has repeatedly annoyed the status quo.
"Defendant-Appellee [McKoy]is a public figure and has long railed against the sale of drugs in the African American community. Defendant-Appellee chairs an organization publicly known as Black on Black Crime, Inc. and has emphatically denied that any drug transaction ever occurred in his presence or that he would ever knowingly permit drug sales from his establishment," Sims wrote in a response brief filed with the high court on May 4 that urges it to not hear the appeal sought by Mason's on behalf of the State of Ohio."It is not seriously disputed by the State of Ohio that the State has the obligation of disclosing the identity of an informant where such a disclosure would be helpful and beneficial to the accused in making a defense to a criminal charge."
Whether Mason is still fighting the McKoy case after failing to produce the alleged confidential informant against Nash and embarrassingly suffering a dismissal of that case by Russo simply to make life difficult for the outspoken community activist remains unanswered. But what is clear is that his office is seeking a ruling from Ohio's high court that state and municipal prosecutors can withhold the names of alleged confidential informants until after a trial starts simply by independently certifying potential harm. And the case at hand is not a fly by night one. Any decision on the merits if the case is heard by the seven Ohio Supreme Court Justices, one a Democrat and none of whom or Black, would impact criminal defendants statewide, a disproportionate number of whom are Black.
The Ohio Supreme Court hears less than 3 percent of the cases filed each year, and a decision on whether it will hear the McKoy case is expected this summer. The last leg of of state level appellate proceedings, it has discretion to hear or not hear an appeal in the category of the issues that Mason has raised based upon whether it is one of public or great general interest, or presents a constitutional question.
If convicted the popular McKoy faces up to a year in prison. His attorneys have challenged Mason to either produce the alleged confidential informant or suffer another case dismissal by Russo.
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