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Mallory Misses the Mark

Judge applies suburban logic to urban murder

By Margo Pierce · January 14th, 2009 · News

Hamilton County Common Pleas Judge William Mallory held an evidentiary hearing Jan. 9 on an appeal filed by the Ohio Innocence Project seeking a new trial for Bryant Gaines, convicted of a 2003 murder in Avondale.

“An innocent person,” Mallory said, “should never be incarcerated.”

He said he respected the work of the Ohio Innocence Project and its efforts to see that innocent people are released from prison. He said he’d read the entire transcript of Gaines’ murder trial in addition to other documents presented as part of the request for a new trial. And he’d requested that the eyewitness who recently came forward to clear Gaines of the murder charge be present to answer questions (see related News article “Down by Law”).

During the hearing, however, Mallory didn’t ask Gregory Carter, the eyewitness, any questions. And even though he had questions for Gaines about the original crime, he declined to speak with him directly.

“Mr. Gaines does not have the right to be here,” Mallory said, noting that Gaines is serving time in prison for his conviction, “so I’m not going to put the county through the expense of bringing Mr. Gaines here when we’re in such a budget crisis.”

In the end, Mallory ruled against granting a new trial based on the new evidence presented.

During the hearing, Karla Hall (pictured), a lawyer with the Innocence Project, presented the basis for the request for a new trial.

“The only witness who identified Mr. Gaines as a shooter at the time of the murder or at trial — his cousin, Brandon Mincy — has had some experiences that have made him realize he was mistaken in his original testimony, and he has recanted that testimony,” Hall said. “A previously unknown witness to the murder, Gregory M. Carter, will testify that he witnessed Gene Bradshaw’s murder, that Bryant Gaines played no role in the murder and that Gaines remained inside the building until after the shooting concluded.

“As your honor knows, there are also several other witnesses that agree Bryant Gaines was inside the building at the time the shooting occurred out front.”

Before she could finish, Mallory told Hall to move up to the point in the narrative when Gaines went to the apartment building that was the scene of the murder. She explained that Gaines, who attended a barbeque at the same building earlier in the day where a fight broke out, returned around midnight because he was looking for his friend.

He was “all dressed up with no place to go.”

Mallory interrupted again.

“He had known that there had been trouble at the barbeque, so my question is why would he go back to a place where he sensed there was trouble?” the judge asked. “Number two, why would he take a car that he deemed not running well back to a place that he knew was troublesome? Number three, his home was not too far from there, so why didn’t he take his car home and just walk there? Number four, why didn’t he call his friend from his cell phone?”

Hall explained that Gaines wasn’t involved in the fight at the barbeque and “saw no reason to look over his shoulder.” The fight, which had taken place hours earlier, wasn’t a concern.

“My problem is … that you don’t just drop into somebody’s house at midnight,” Mallory interjected.

“In my neighborhood, your honor, I’d agree wholeheartedly with you,” Hall responded. “But it seems that was not necessarily the way their social group interacted.”

Trying to provide the very context Mallory claimed to need, Hall explained that Gaines knew the car he bought was a “fixer upper” prone to stalling but that it was all he could afford.

“That’s all the more reason not to take it to somebody’s house at midnight,” Mallory said.

After the state presented its opposition to the motion for a new trial, Hall had an opportunity to respond.

“We’re entitled to have the totality of the circumstances examined to see, with this new information available, whether a reasonable jury would reach a different conclusion than was reached at the trial,” Hall said.

Noting that Carter’s eyewitness account is new information that couldn’t have been discovered before the trial, given that Carter remained silent to protect his family, Mallory agreed that the discovery of the witness meant the motion for a new trial was filed in a timely manner. But he went on to say that Mincy’s recantation — made while he was jailed on a charge unrelated to the murder — “is of no value.”

Mallory speculated that someone sitting in prison could easily begin to feel regret about blaming a family member for murder and change his story because of that regret. The judge then began to delve into Mincy’s recantation and his trial testimony.

“The testimony of Brandon Mincy was very credible … and at the time he testified he would have been very afraid, very impressionable and … this was a trial that had a lot of heated emotion,” Mallory said. “At times Judge Niehaus actually banned certain people from his courtroom during the trial because there seemed to be this air of witness intimidation and heightened emotion because it involved people who were related to one another. Through all of that pressure, I believe that Mr. Mincy testified truthfully.

“Any new testimony by Mr. Mincy isn’t of any value. … That recantation, if true, could have been brought out through the judicial process through the grand jury or at trial through cross-examination.”

That Mincy might have been one of those intimidated witnesses wasn’t a possibility Mallory brought up.

“Having read the transcript in this case and considered all the questions in this case and the lingering questions in my mind that I asked earlier in this proceeding … the evidence against Mr. Gaines’ guilt is overwhelming,” the judge said. “Even if I were to allow this trial and if I allowed the testimony of Mr. Carter, I do not believe that the outcome would change.”

Hall says the Innocence Project will appeal.

“I disagree with the judge’s findings,” she said after the hearing. “I strongly disagree, particularly when he categorizes the evidence of Bryant Gaines’ guilt as ‘overwhelming.’ At this point there’s not a soul in the universe who would testify that Bryant Gaines had anything to do with the shooting.”

 
 
 
 

 

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