You won’t get much argument out of Cuyahoga County Prosecutor Bill Mason about the truth of the aphorism, “never get into a pissing contest with someone who buys ink by the barrel.”  The Cleveland Plain Dealer has been taking shots at Mason for years — some with merit, some not — but the week before Thanksgiving it rolled out its big gun:  a five part story alleging that Mason’s office “went after hundreds of people with little or no evidence.”  Ironically, on this score,  it seems the newpaper did pretty much the same thing to Mason.

For years, judges and defense attorneys have complained that Mason’s office pursues cases that don’t have merit.  That a prosecutor’s office would do this arguably falls into the ”dog-bites-man” category, but the PD decided to investigate, focusing on a particular phenomenon:  the Rule 29 dismissal.

In criminal cases, a judge can throw out a case by granting a Rule 29 motion at the end of the State’s case, but only if, after construing the evidence in favor of the State (and without weighing the credibility of the State’s witnesses), she concludes that no reasonable juror could find the defendant guilty.  The PD checked court records over the last 10 years, and found that judges had granted Rule 29′s in 364 cases, out of almost 6,900 trials.  The paper hypothesized that a Rule 29 dismissal was evidence of a fundamental weakness in the state’s case — i.e., an indication that it shouldn’t have been pursued — and obtained transcripts of those cases, and interviewed defense attorneys, prosecutors, and Mason himself as to what had happened.

 Even at best, all this tells us is that Mason’s office sometimes pursues weak cases, not that he does so more than any other prosecutor.  And so the PD decided to go further:  it would gather the data on Rule 29 dismissals under Mason, his predecessors, and prosecutors’ offices in other Ohio cities and compare them.  If the dismissal rate was higher under Mason, then it would show that he forces unmeritorious cases to trial.

There are some problems with that assertion, too, but even without them the effort ran into difficulties.  The county didn’t have records of Rule 29 dismissals before 2000 (Mason was elected in 1999), so there could be no comparison with his predecessors.  In fact, only one other county in Ohio, Lucas County, which includes Toledo, keeps those stats.  The PD then expanded its study to include other metropolitan areas with similar criminal caseloads, including New Orleans, Miami, Indianopolis, and others.  Only one, Pittsburgh, kept track of Rule 29 dismissals, and then for only a four-year period.  There were differences —  judges here threw out 1 in 21 cases, while the rate in Toledo was 1 in 27, and in Pittsburgh in in 45.  But the paucity of comparable data makes drawing any valid conclusions impossible.  It would be like if you set out to determine the worth of your home, a 4-bedroom colonial, by comparing it to six other four-bedroom colonials on your street, only to wind up making comparisons with a three-bedroom ranch in Las Vegas and a bungalow in a Chicago suburb.

If this had been a purely scientific study, the people conducting it would have given up:  without comparison data, there’s no way of proving the hypothesis that Bill Mason is any more pr0ne to pursuing meritless cases than any other prosecutor.  But it wasn’t, and PD reporters hadn’t gone to all the trouble of interviewing boatloads of people and checking court records from cities around the country to say, “Well, that didn’t work,” and chuck the whole thing into some filing cabinet in the basement.  And so the story rolled out, with the headline quoted above, and with this lede:

“Bill Mason has repeatedly neglected his No. 1 duty as prosecutor:  seek justice for the people of Cuyahoga County.”

Unfortunately, the story didn’t come close to proving that.  Aside from the lack of any meaningful comparison, other problems abound, the main one being the hypothesis that a Rule 29 dismissal is evidence that a case shouldn’t have been brought in the first place.  That doesn’t account for times when a case got thrown out because a prosecutor screwed up and forgot to introduce a key piece of evidence, or a witness didn’t show up, or did but blew up on the stand.  Moreover, that a case is dismissed on a Rule 29 says much more about the judge than it does about the case; the second story in the series, somewhat cluelessly titled “Cuyahoga County judges differ widely in throwing out cases for lack of evidence,” contains a nifty little chart for each judge, past and present, and the number of cases they dismissed, where we learn that 90 out of the 364 Rule 29 dismissals, almost 25%, were granted by just three of the 59 judges who sat on the bench during the past ten years.  What’s more, the 364 Rule 29 dismissals included bench trials.  Although the standard for dismissal is the same, since the judge, not a jury, is going to be the finder of fact, it’s not surprising that some judges will figure that if they’re not going to find the defendant guilty by the close of the State’s case, there’s not much point in taking up further trial time.  That’s borne out by the fact that for all but a handful of judges, the rate of Rule 29 dismissals in bench trials was much higher than in jury trials. 

That’s not to suggest that large chunks of Bill Mason’s time are occupied by concern that his office might be prosecuting people who aren’t actually guilty.  I’ve seen dumb cases go to trial, but I’ve seen that in every jurisdiction I’ve practiced in.  I’ve seen more of it in Cuyahoga County, but then I practice much more here, and there’s some selective bias, too:  neither prosecutors nor defense attorneys are notably impartial observers on this subject.

That’s not to let Mason off the hook.  He’s the most blatantly political prosecutor I’ve seen.  He recently had to give back over $100,000 in political contributions he’d received from his staff, and woe be to any assistant prosecutor who doesn’t show up wearing his white “Bill Mason” t-shirt at the annual holiday parades around here.  But live by politics, die by politics:  when just about anybody in Cuyahoga County who hadn’t flatlined his last EEG had long ago figured out that the county government, and the Democratic party which ran it, was largely corrupt, Mason claimed ignorance.  Whatever ambitions he had for higher office ended in August 2008, when the FBI began its investigation into corruption here.  Former prosecutors are usually good candidates because they’ve got a lock on the law and order stuff, but your bona fides there are subject to serious attack if you were the major law enforcement official in the county during the time that the Feds were indicting just about every third official, many of them your political cronies.

So rumor is that we’re not going to have Bill Mason to kick around much longer — his term is up in two years, and he’s likely to pack it in — and there’s been some things that he deserved to be kicked for.  But the Plain Dealer story?  Sorry, I think it’s a real weak case.