A compare and contrast in two sexual assault cases in Judge Nancy McDonnell court
Justices Grant New Trial in Cold Rape Case
By Celeste M. Hart
What Happened Was: The new trial hearings were continuously continued while the defense attorney, Marcus Sidoti and prosecutor, Oscar Albores, provided plea arrangements that began with high stakes. Hart, granted a bond and released, was offered to return to prison for two years with placement on sex offender list for life or 10 years, to not at all, depending on which charges agreed. The ‘victim’ said, through a source, that detectives harassed and threatened her with arrest if she refused to testify in the new trial. To her credit, she still refused. Final answer, Attempted Abduction, time served, not predator listed, Hart said he was just ‘tired’ and his attorney advised against a new trial due to jury concerns. Of course, I was justifiably angry.
Ohio’s Eighth District Court of Appeals panel, Justices Melody L. Stewart, Eileen T. Gallagher and Sean C.Gallagher, on August 17, 2018, granted David Hart an opportunity for exoneration in an 1998 cold rape case. Attorney Marcus Sidoti argued for Hart, April 24, 2018, based on pre-indictment delay, a prior acts error, known as 404(B) and failure to prove beyond a reasonable doubt. “We find some merit to the appeal and affirm the trial court’s judgement denying Hart’s motion to dismiss for pre-indicment delay. However, we reverse Hart’s conviction and remand the case to the trial court for a new trial,” judgement read. Sean Gallagher dissented on the pre-indictment delay but the panel was unanimous on the prior acts error that classifies a serial predator.
“I would find that Hart has demonstrated actual prejudice from his inability to call the only person present during the events to which the victim testified and remand for the trial court to consider the remaining aspects,” Gallagher wrote.
Oral arguments turned comical as Prosecutor Oscar Albores steadfastly presented his prior acts argument that Hart previously raped a young white girl, A.P., while the panel laughed out loud.
“He grabbed her wrists,” Albores insisted.
Justice Sean Gallagher reminisced about his college days and joked, “It sounds like he (Hart) was trying to get lucky.”
“I was not threatened…I was not raped,” testified A.P. under defense questioning in the cold case trial.
A.P., at 15, reported Hart, at age 22, kidnapped and sexually assaulted her, in 1996. The recent revealed original police report, states Porch-Lizanich (A.P.) approached David via pager and asked him, “Do you want your—-(male private part) sucked.” Hart and a friend, connected with Porch and her friend, never discussed age, she changed her mind, said ‘no,’ and Hart took her home. Porch, testified for the prosecution, that Hart held her hands under a barbell, touched her breasts and went down her pants. A.P’s husband, provided cue cards, from the back of the courtroom, flagrantly shaking his head for ‘no’ answers and nodding for ‘yes’, which McDonnell ignored.
In the prior acts case, A.P., Hart plead guilty to attempted corruption of a minor, before Judge Kathleen Sutula and registered a sex offender for 10 years. Documents submitted erroneously stated Hart pleaded guilty to rape, kidnapping and corruption of a minor.
“I’d never have a chance against a white girl, the prosecutor, my lawyer, bailiffs, CO’s all told me, and Sutula wanted to give me 25 years, even though no physical or forensic evidence existed, , a he say/she say, her word against mine. Who they gonna believe?” said David.
Unbeknownst to Hart, in 1998, C.H. reported two guys kidnapped her and friend, Tierra Jackson, as they walked to Shaw Alternative High School. The trial revealed C.H. and Jackson cut school, Hart and a friend retrieved them from the victim’s home, stopped at two stores for beer and smoked weed in his grandmother’s basement. Jackson and Hart’s friend deviated to another room, opposite a weight room where C.H. alleged rape occurred, while another friend played video games in a middle room of the close area, transcript states. Witnesses, Hart’s grandmother and both friends, now deceased.
“I didn’t hear bout no rape,” testified Jackson.
+ In 2016, a sex crime investigator contacted Hart, DNA on C.H. underwear, a piece cut from the crotch, ‘hit’ Hart. The kit results showed no sperm on her body, in pubic hairs and no scars or bruises. Prior to trial, C.H. deleted her Facebook page where they shared friends and liked mutual posts. She often patronized his East Cleveland restaurant, from 2002 thru 2004, he easily could be found.
The trial commenced, March 13, 2017, followed refused deals that ranged from six months, two years, five years, to 25 years in prison. Albores, offered life off the table if Hart waived his appeal rights. In court, Albores discussed a sentencing scheduling conflict involving another rape defendant.
“To be honest, let’s get the parties together so I can hammer out a plea from both of you kind of thing. It’s a retrial of another rape case,” said Albores, transcript states.
According to Cuyahoga county prosecutors’ website, 65 percent of indicted cold cases resulted in plea deals and 12 percent found guilty.
Albores, in Judge Nancy McDonnell’s court, acted with C.H. how Hart held her wrists underneath a weight barbell, not mentioned in original police report that McDonnell denied the jury’s request to review. C.H. claimed Hart pulled her pants down, unzipped his, tore condom wrapper with his teeth and forced his penis in her vagina. She said it took about 10 minutes then she asked him for a ride home.
“He said he’ll take me home if I have sex with him. He told me he give me some money to have sex with him,” testified C.H.
“She (C.H.) always been a troubled child. Always lying, smoking weed, drinking and cutting school… I had a leather belt to whip her…I would whoop her,” testified Barbara Deskins, C.H.’ mother.
Motives for false rape accusations include, avoiding punishment, cutting school, an alibi for infidelity, and financial compensation, according to the Center of Public Integrity.
The diverse jury deliberated two days yet remained evenly hung.
THE COURT: All right. Now, this is the question I have and I want to know if
this is your question, sir. Can we have a copy of the original police report? Signed by yourself and dated today, 3-16-17. Is that your question, sir?
JUROR McCULLAR: Yes, it is.
THE COURT: The answer is no. You are to go back to the jury room
and deliberate further on this matter.
McDonnell proposed the Howard charge, a tactic to coerce a jury to decide a verdict.
“You should consider it desirable that the case be decided. You are selected in the same manner and from the same source as any future jury would be. There is no reason to believe the case will ever be submitted to a jury more capable, impartial, or intelligent than this one. Likewise, there’s no reason to believe that more or clearer evidence will be produced by either side.
It is your duty to decide the case if you can conscientiously do so.
The next morning, Friday, March 17,
“One of our jurors did not appear today. And we’ve given him an hour and 25 minutes and I intend to seat the alternate in his place. Any objection on behalf of the State?”
MR. ALBORES: No, your Honor.
THE COURT: Any objection on
behalf of the defense?
MR. MACK: No, your Honor.
THE COURT: All right. Thank you. I’m going to tell them they have to
start their deliberations anew.
– – – – –
During recess, McDonnell and Albores discussed plans for the evening.
“Are you going to the parade? I thought you would be there,” said Albores.
“I plan to go down there, right after this,” said McDonnell.
An alternate juror, African American male, age 22, uninvolved with deliberations, replaced the absent juror and in 40 minutes, guilty on all counts.
Right after court, McDonnell participated in downtown Cleveland’s parade, her ritual since 1996. Following the weekend festivities, Monday, McDonnell sentenced Hart, 10 years to life in prison and labeled a serial sexual predator.
“I am innocent and anxious to clear my name in both of these injustices,” said Hart, before the coerced plea.
Sidoti, in his appeal argument, called the cold case tribunal a ‘trial by ambush.’
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