COMMENTARY: City Prosecutor’s Decision Doesn’t Pass the Smell Test

Sometimes decisions made by public officials don’t pass the smell test. When members of the public look at a situation and walk away shaking their heads saying, “Something just isn’t right,” usually something isn’t right. That’s what happened last May when Assistant Cleveland City Prosecutor Aric Kinast declined to file charges against Frank Q. Jackson — the grandson of Mayor Frank G. Jackson.

This week, a Cuyahoga County grand jury indicted 22-year-old Jackson on charges arising from the same set of facts reviewed by the city prosecutor. The grand jury returned indictments for one count of second-degree felonious assault, one count of third-degree felony abduction and two counts of failing to comply with the order of a police officers.

Based on newspaper accounts, back in May, an 18-year-old woman claims that she was a victim of an assault at the hands of Jackson. According to the woman and the police report, the incident involved punches, choking and an attack with metal hitch that Jackson retrieved from his truck during the melee. There were two eyewitnesses and a surveillance camera that put Jackson and his vehicle at the scene. So this was hardly a he said/he said dispute. The police at the scene investigated and determined that there was enough evidence to believe that the alleged perpetrator was the mayor’s grandson.

Clearly, Frank Q. Jackson was entitled then and now to a presumption of innocence. He is entitled to every constitutional right afforded any defendant in a criminal case. The burden of proof now shifts to the State of Ohio to prove beyond a reasonable doubt any allegations against him.

But the victim and the community also have some rights. Even though the woman making the allegations refused medical treatment at the scene and later signed a non-prosecution form in the city prosecutor’s office, the decision as to whether to prosecute is not hers to make — it’s up to the State of Ohio. The would-be victim and the community as well as the defendant are entitled to a fair and impartial decision maker to decide the merits of her claims.

Following normal procedures, having gathered evidence of an alleged crime, police take the evidence to a prosecutor — either city or county — to decide whether the case should go forward. In 99.99% of the cases, the prosecutor doesn’t know the victim or the defendant from Adam. They look at the facts, determine if they can prove the allegations, and based on his or her legal training and experience, decide what charges if any should be brought.

But the prosecutor has an obligation in those remaining .01% of the cases to point out any pertinent information that might be perceived as bias toward one side or the other: “I used to live next door to the victim.” “I went to school with the defendant’s mother” or any of a myriad of other examples of the principle of six degrees of separation. Any points of contact, no matter how remote, that cause a normal person to perceive some nexus between the prosecutor for or against one side or the other raises serious questions as to the prosecutor’s objectivity.

The pungent odor emanating from the decision made by Assistant City Prosecutor Kinast to decline to bring charges against Frank Q. Jackson comes from the fact that Kinast works at the pleasure of Jackson’s grandfather, the mayor.

Frank Jackson, as the mayor of the City of Cleveland, appoints the city law director. The law director, most likely in consultation with the mayor, hires the chief police prosecutor. The chief police prosecutor, also most likely in consultation with the mayor and the law director, hires his assistants. Even though Kinast’s tenure at the city prosecutor’s office predates Mayor Jackson’s time in office, he still works at the pleasure of the law department of the City of Cleveland, which is ultimately answerable to Mayor Jackson.

Once Kinast recognized the relationship between the would-be defendant and the mayor, which was reflected in the police reports, prudence and sound judgment should have told him to turn the case over to the county prosecutor’s office which has concurrent jurisdiction.

The alternative would have been for the city prosecutor to appoint a special prosecutor. This would be someone with no ties to the city of Cleveland or the Jackson administration — perhaps one of the suburban city prosecutors — to review the evidence and make the call.

There is a term used in legal circles that is analogous to failing to pass the smell test. It’s called the appearance of impropriety. The decision made in this case by a city employee to decline prosecution of the mayor’s grandson is a classic example.

Now that the county prosecutor has obtained an indictment against Jackson, someone should ask the city prosecutor what happened. Were Chief Police Prosecutor Karrie Howard and his boss, Law Director Barbara Langhenry, aware of the case? Did Kinast take the case up the chain of command and inform his supervisors of his decision or was he a lone wolf? At this point there is no reason to believe that the mayor had any knowledge of the decision, but still, a large can of Febreze can’t cover up the odor coming from the city prosecutor’s office in this case. The public is entitled to some answers.

C. Ellen Connally is a retired judge of the Cleveland Municipal Court. From 2010 to 2014 she served as the President of the Cuyahoga County Council. An avid reader and student of American history, she serves on the Board of the Ohio History Connection, is currently vice president of the Cuyahoga County Soldiers and Sailors Monument Commission and president of the Cleveland Civil War Round Table. She holds degrees from BGSU, CSU and is all but dissertation for a PhD from the University of Akron.

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One Response to “COMMENTARY: City Prosecutor’s Decision Doesn’t Pass the Smell Test”

  1. James McElroy

    I had a car like this case once, it just wouldn’t stay fixed.

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