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Divided appellate court remands perjury case in which judge’s testimony 'sealed fate' of defendant

ANNIE YAMSON
Special to the Legal News

Published: May 28, 2015

A divided 8th District Court of Appeals recently ruled that the Cuyahoga County Court of Common Pleas erred when it allowed the testimony of Judge Michael Donnelly during the perjury trial of defendant Adrienne Smith.

Smith was found guilty in 2014 of giving false testimony in the trial of her former boyfriend, whom she accused of raping her 9-year-old daughter in 2002.

The rape prosecution was premised on the state’s theory that the boyfriend, who was a carrier of the herpes virus, transmitted the virus to the daughter, who contracted it in her genital area.

The state contended that the virus remained latent until the daughter’s teenage years, when an outbreak occurred and the rape allegations came to light.

“The state’s theory appeared solid, given the daughter’s repeated insistence that she had yet to become sexually active,” case summary states. “This created the strong inference that she could only have contracted the virus because of the boyfriend’s conduct.”

That theory took a big hit during pretrial discovery when the boyfriend’s defense team learned that, contrary to her initial claims, the daughter had, in fact, been sexually active in her teenage years.

Despite the revelation, the state pressed on with its theory that the boyfriend was the one who transmitted the virus.

Once the rape trial commenced, Smith testified for the state and denied that the daughter had ever been treated for herpes prior to her treatment as a teenager.

She said the daughter had only been treated for a rash in her genital area.

Before closing arguments, investigators for the boyfriend discovered medical records from 2000 showing that the daughter had been prescribed a medication commonly used for the treatment of herpes, well before she would have ever met the boyfriend.

Smith denied any recollection of the treatment.

Deciding that the newly discovered medical records completely destroyed the state’s case, Judge Donnelly, who presided over the rape trial, dismissed the case with prejudice over the state’s objection.

Donnelly then penned a letter to the Cuyahoga County Prosecuting Attorney and the administrative judge of the court of common pleas requesting that Smith be investigated for perjury.

After Smith was found guilty in the Cuyahoga County court, she appealed to the 8th District court, where a majority found that her trial was rife with error due to Donnelly’s testimony.

At Smith’s perjury trial, Donnelly read the letter that he wrote to the county prosecutor and administrative judge in which he stated that Smith gave “patently false” testimony during the rape trial.

Donnelly also testified that the newly-discovered medical records, that Smith claimed did not exist, “completely undermined” the state’s rape prosecution.

“A sitting judge is not, as a consequence of the office, barred from giving testimony at a trial,” Judge Melody Stewart wrote in the opinion that she authored on behalf of the three-judge appellate panel’s majority. “There are, however, inherent issues with using a judge as a witness, particularly when the judge is to give testimony with respect to the mental processes performed in deciding a case.”

Stewart noted that a court speaks through its journal, so “a judge’s opinions and mental processes are not subject to examination.”

Citing 1995’s Georgou v. Fritshall, Stewart continued, “A judge’s testimony is likely to bear additional weight in the mind of jurors because of his position and authority, and because it automatically bears the imprimatur of character, credibility and reliability emanating from the judge’s position rather than the quality or veracity of his testimony.”

During Smith’s trial, Donnelly’s testimony delved beyond what was included in the journal entry that dismissed the trial and went into what the judge’s thought processes were when he dismissed the case.

“My recollection, I was very upset with this revelation because of the seriousness of this case and the parties about the argue in favor of a conviction that would be a mandatory life sentence,” Donnelly stated during his testimony. “And I said to the bailiff, I’m not accepting a plea agreement with this revelation. There is not going to be a plea.”

Stewart wrote that the trial court, in error, allowed Donnelly to testify that his decision to dismiss the case was not appealed, implying that the state agreed with his decision which was unfairly prejudicial to Smith.

The trial court also allowed Donnelly to explain why he asked that Smith be investigated for perjury: “I indicated that, in view of this material contradiction and the evidence that was produced that established that contradiction, an investigation was warranted.”

“Although the judge used the term ‘contradiction’ instead of ‘falsehood,’ he left no doubt that he believed that Smith purposely withheld information that the daughter had been diagnosed with herpes before she met the boyfriend,” Stewart wrote.

Donnelly’s statements included implications that Smith lacked credibility and statements that disclosed his opinions about trial evidence.

Additionally, Stewart pointed out that, after the medical records were disclosed during the rape trial, Donnelly gave the state little time to investigate.

“The judge said that he gave the state 15 minutes to address the questions it had about the newly discovered medical records; the assistant prosecuting attorney claimed it was only 10 minutes,” Stewart wrote. “Regardless, 15 minutes was simply not enough time for the state to investigate medical records that had just been handed to it.”

At the perjury trial, the prosecuting attorney in the rape case testified that, had she been given time to investigate the medical records, she still would have proceeded with the case against the boyfriend.

“I would have gone forward, but with proper dates and proper due diligence,” the prosecutor testified.

In the end, Stewart wrote that Donnelly had other options instead of dismissing the rape case, including declaring a mistrial or granting a continuance.”

Had the rape case proceeded and resulted in a guilty verdict, Donnelly could have set aside the verdict and granted a judgment of acquittal if he believed the boyfriend was wrongfully found guilty.

“To be clear,” Stewart wrote, “None of what has been said should be interpreted as suggesting that the discovery of the medical records did not change the course of the rape trial.”

However, the court of appeals’ majority held that Donnelly took the weight of the evidence into his own hands, even though the burden of proof rested with the state and the weight of the evidence was for a jury to decide.

“Perjury is a serious offense that undermines the administration of justice,” Stewart wrote. “Yet, it is perhaps trite to suggest that perjury occurs in nearly all contested trials — sometimes the evidence is so conflicting that someone has to be lying.”

Despite that acknowledgment, Stewart wrote that perjury prosecutions are “exceedingly rare,” making up less than one-half of one percent of all federal prosecutions.

“One likely stands a better chance of being struck by lightening than being prosecuted for perjury,” she wrote, citing National Weather Service statistics.

“So why did lightening strike Smith?” Stewart asked. “The obvious answer is that the judge who presided over the rape trial initiated the prosecution and, despite calling for an ‘investigation’ into whether Smith committed perjury, he had all but concluded in advance that she gave ‘false testimony’ that ‘irreparably damaged the state’s ability to submit the rape case to the jury.’”

When Donnelly was permitted to testify regarding why he dismissed the rape case and his belief that Smith not only lied, but that her lie was material, “Smith’s fate was impermissibly sealed,” according to Stewart.

Stewart concluded that the jury in the perjury trial heard all of the evidence “in a manner that highly prejudiced Smith.”

She held that the state did not need to present Donnelly as a witness and that “the inescapable conclusion is that the state had the judge testify to leverage the prestige of his office against Smith.”

Stewart also ruled that Smith’s counsel was ineffective for failing to object to Donnelly’s testimony, noting that had he done so, and the objections were sustained, “there was a reasonable probability that the outcome of the trial would have been different.”

Stewart concluded by reversing Smith’s convictions and remanding the case for a new trial.

Judge Tim McCormack dissented with a separate opinion in which he wrote that “this case is troubling from the beginnings up to today.”

“The allegations are ugly and the testimony of a trial judge in a subsequent trial, even if allowable, greatly complicates it all,” McCormack wrote.

Despite what he called the “volatility” of a judge testifying at a trial, McCormack wrote, “On balance, I view (Donnelly’s) role here as being the one best able to decipher, step-by-step, how this perjury trial came to be.”

“I find that the two judges who presided over the two trials got it right,” McCormack wrote.

Judge Frank Celebrezze wrote that he could see the merits to both sides, but he ultimately sided with Stewart to form the majority: “As much as I agree with the sentiment of the dissent, in this case the issues pointed out by the lead opinion cannot be overlooked.”

Celebrezze concurred in judgment only.

The case is cited State v. Smith, 2015-Ohio-1736.

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