Prosecutorial discretion
The lead opinion in State v. Ollison from the 8th District last week doesn’t give any clue that the case is out of the ordinary. Ollison and his girlfriend, Barbara Williams, lived in a trailer in Cleveland. They were acquainted with Moore, and let him sleep in a car on the property. The relationship with Moore grew contentious — according to Ollison and Williams, Moore broke into the trailer, set Ollison’s truck on fire, and threatened them and shouted obscenities whenever he came by. One day he did that, and Ollison had had enough, and got his shotgun. Moore started walking away, but Ollison fired and hit him in the back of his legs.
In a bench trial, the judge found Ollison guilty of the lesser offense of aggravated assault, and gave him the minimum six month sentence, plus the three years for the gun spec. Ollison argued on appeal that he should have been found guilty of negligent assault, the court properly noted that there wasn’t anything negligent about what he did, and that, as they say, is that.
And then Judge Gallagher does a Paul Harvey imitation in his concurrence, and gives us “the rest of the story.”
Turns out Ollison was 76 years old, and a Korean War veteran. He suffers from congestive heart failure. He had no prior criminal record. He never denied what he did, or tried to minimize it. Moore, on the other hand, had served twenty-one years in prison for felonious assault and aggravated burglary. Ollison fired the shotgun from 35 yards away; three small pellets struck Moore in the lower legs. Moore declined hospital treatment, and the trial judge specifically found he suffered no “serious physical harm.”
So what’s the point? Not that Ollison shouldn’t have been prosecuted, or should have been acquitted; Gallagher agrees that “the law cannot sanction Ollison’s decision to engage in vigilante justice against Moore.” His beef is with the prosecutor, and more particularly that they never offered to take out the gun specification, which is why Ollison will probably die in prison.
Gallagher says “there is no evidence in the record that Ollison was offered a plea,” but just because there’s no evidence in the record doesn’t mean one wasn’t offered. So on Monday, I ran into Ollison’s trial lawyer and asked him about it: “Did the prosecutor offer to take out the gun?” He shook his head in disgust. “Hell no. That’s why we had to try the case.”
This isn’t the first time the 8th has raised the question of prosecutorial discretion; interestingly, Judge McMonagle, the author of the lead opinion in Ollison, noted that very issue with regard to expungement in a case over two years ago, State v. Boddie, which I discussed here.
Should the prosecutor have offered a deal? I think so, but then again, as you’ve probably figured out by now, I need to keep a bucket nearby at all times for my bleeding heart, and the same could probably be said for McMonagle. Gallagher doesn’t have that problem. He’s a fair guy, but nobody’s going to try to portray him as soft on crime, especially since he served as an assistant county prosecutor for seven years.
Gallagher would do everybody a favor if he’d print out and frame the last paragraph of his concurring opinion, take it back to his old stomping grounds, and make sure it’s conspicuously posted :
This case brings to mind the old adage that just because a prosecutor can do something, does not always mean he should. Here the prosecutor declined to exercise his discretion and remove the gun specification, and he no doubt believes that justice was served. I, on the other hand, am left with the sinking feeling that it was not. Prosecutorial discretion is often the most powerful component in a criminal prosecution. There are times when it should be exercised. In my view, this was the appropriate time.
April 16th, 2009 at 8:48 am
A couple of interesting things to note about this case (muddying the picture a bit)….Mr. Ollison failed to appear for a trial date, was capiased, picked up and then spent a few months in jail before the matter ultimately went to trial.
And, perhaps most importantly, the trial judge DENIED a motion for an appellate bond. These circumstances are frequently the type that a trial judge will consider an appellate bond. I have something similar going on with a very old man recently convicted of a mandatory prison offense. The trial judge is granting an appellate bond, stretching out the incarceration date by 12-18 months and we all hope (including the prosecutor, I think) that the old man won’t have to go to prison. Perhaps Mr. Ollison’s FTA for trial influenced the judge to deny the appallate bond.
April 16th, 2009 at 7:07 pm
Both of you forgot something very important: the name of the trial judge was Richard Ambrose. The prosecutor who handled the trial was Ralph Kolasinski.
I don’t know who reads these, but, the names of the elected judge and the appointed prosecutor should be known to all who do.
WHO ever said you leave 1200 Ontario Street with the name on the front wall outside? [That's 'justice' to those who don't know.]
PAS.
April 17th, 2009 at 7:47 am
I don’t think either Ambrose or Kolasinski had any responsibility for this. If I’m the judge, I acquit the guy or find him guilty of simple assault (gun spec doesn’t apply to misdemeanors). But that’s me (see comment above re bleeding heart); I can understand why Ambrose believed he had to follow the law and find as he did, mainly because he took an oath to just that. Ralph’s a decent guy, and had no more to do with whether the gun spec stayed in than you or me. In Cuyahoga County, all plea deals are determined by one of three supervisors.
April 17th, 2009 at 10:37 am
Russ: The number of plea-authorizing supervisors has now gone up to five (one for each of the five new “regions”) and, interestingly, one of them is Ralph. I also have a very good opinion of Ralph.
April 17th, 2009 at 1:06 pm
Well, I join in saying that Ralph treats everyone fairly…..lets just agree that the Office of B. M. didn’t handle it correctly.
PAS.
April 17th, 2009 at 4:44 pm
I represented Harry Ollison on appeal. It is also important know that Ollison let the “victim” (Moore) stay on his property because the victim had DV problems. No good deed goes unpunished. Ollison testified that he evicted moore because moore stole his welding torches. In retaliation, Ollison testified that Moore burned his truck & would taunt him daily. I think the case was lost on the undisputed fact that Moore was walking away at the moment the shot was fired. I urged on appeal that the trial court fell into the trap that lawyers like engineers, sometimes are over analytical. I urged that the trial court failed to recognize what Harry recognized: to wit: that neither the rule of law, the court of common pleas, the cleve muny court, nor the CPD were going to prevent Moore’s daily terror & intimidation. That the law didn’t require Harry to put the gun down only to have his rights vindicated post mortem by the CPD homicide & arson units. I also found a case from a rural county in which (same facts) (shooting fleeing trespassers except the persons were strangers w/ no history of intimidation) the shooting led to a leg amputation. the guy was only convicted of negligent assault. Harry testified that he only tried to scare moore & that moore wouldn’t be alive if he really meant to hurt him. Of course, Harry was faced w/ the problem that F asslt is only “knowingly”