State supreme court turns down appeal to compel appearance at trial

The Ohio Supreme Court unanimously rejected a prosecutor’s effort to issue warrants, and potentially jail time, to two witnesses in an attempted murder case.

The Cuyahoga County prosecutor argued the two were material witnesses to the crime and should therefore be compelled to cooperate. But the Supreme Court determined the prosecutor hadn’t done enough to show a warrant was necessary.

The prosecution typically focuses on putting the perpetrator of a crime behind bars, so a fight over whether they can jail a witness might be unexpected. Their ability to impose bond or even jail time, though, is well established. The majority opinion noted all fifty states have laws to that effect, and cited the 1953 case Stein v. New York which held the “duty to disclose knowledge of crime … is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.”

The case in Ohio centers on the 2017 indictment of Darnell Eatmon for allegedly shooting Khaalis Miller. It took more than a year for authorities to apprehend Eatmon, and once they did, prosecutors began working to get Miller and his mother Lisa Ford to testify at trial.

It didn’t go great.

According to prosecutors, they called and left messages at multiple phone numbers and visited four addresses in East Cleveland, Euclid, and Painesville in their attempts to reach Miller. They even tried him on Facebook.

In a few instances, their efforts may have been intentionally thwarted. In Painesville, the person who answered the door said Miller didn’t live there, but the apartment manager later told prosecutors one of the residents was named “Khaaliah” Miller. Over the phone, a man who picked up answered to “Mr. Miller” before saying that Miller was out once the prosecutors introduced themselves and began asking questions.

Prosecutors claimed Eatmon confessed “his crimes” to Ford, but they didn’t do much better getting her to cooperate. After multiple calls and visits from investigators at home and work, Ford had had enough.

“Ford later called the detective and “yell[ed] at him” for coming to her house and her job and “stat[ed] that she want[ed] nothing to do with the case,” the majority opinion noted. “Ford further told the detective that Miller did not want the case to be prosecuted.”

Despite the lack of cooperation from Miller and Ford, the prosecutors went forward with their case. Starting in April of 2019, they began filing material witness motions with the judge, arguing they’d mailed subpoenas or left them at Ford’s residence. Those motions were repeatedly denied.

Their effort culminated in July of that year when, after agreeing to delay hearings for about two months, the judge asked why Miller and Ford weren’t in court. The prosecutors again asked for material witness warrants against them, but acknowledged they hadn’t served a subpoena in person or even spoken directly with Miller or Ford in the intervening months. The judge wasn’t satisfied with that and dismissed the case.

On appeal, the prosecution argued that Ohio’s material witness statutes don’t explicitly require them to personally serve a subpoena, and the attorney’s statements in court should be enough to show probable cause for a warrant against Miller and Ford.

The appeals court and the Supreme Court didn’t buy it. The majority opinion looked to rights against unlawful search and seizure in the Fourth Amendment to the U.S. Constitution.

“The state’s request for a warrant to detain a material witness must be by oath or affirmation and be supported by probable cause to believe that the witness is material and that the warrant is necessary to procure the witness’s attendance at trial,” they wrote.

In particular, the court seemed to get hung up on the fact that prosecutors were calling for measures as significant as jail without ever properly delivering a subpoena.

“The reality is that the state’s efforts merely established that Miller and Ford were reluctant to cooperate,” the justices wrote. “Reluctance to cooperate does not amount to deliberate defiance of a lawfully served subpoena. Simply put, the state failed to lawfully serve subpoenas on the witnesses or ensure that they had actual knowledge of the subpoenas the state left at Ford’s residence.”

In an emailed statement John Kosko, who supervises the homicide department for the Cuyahoga County Prosecutor, didn’t take issue with the court’s reading of the law, but he did push back on its interpretation of his team’s efforts.

“Our office agrees that a request that a court issue a material witness warrant should be established by an oath or affidavit,” Kosko said. “But we disagree that the state did not show probable cause in this case that the witnesses would not appear in court.”