Making the Case for Mills

By Joe Mizer, The Times-Reporter
Posted 9/4/2009

Lawyers for Marsha Mills argued before an appeals court Thursday that the Dover woman deserves a chance to present new evidence that they say could lead to a new trial for Mills in the death of a 2-year-old New Philadelphia boy who died while she was baby-sitting him in her home.

The lawyers, presenting oral arguments before the 5th District Court of Appeals, said her original attorney did a poor job during her 2007 murder trial. They also argued that the trial judge was wrong to deny Mills’ request following her conviction to present new evidence.

“We continue to advocate that Ms. Mills is factually innocent,” attorney Richard Parsons of the Columbus law firm of Kravitz, Brown & Dortch LLC, which represents Mills, said in an interview after the arguments.

Assistant Ohio Attorney General Emily Laube argued for the state that all of the defense arguments were or should have been brought up before. She asked the appellate court to reject a further appeal.

Mills, 59, was convicted of murder in the May 2006 death of Noah Shoup of New Philadelphia in her home while she was baby-sitting him and several other children. She is in prison and did not appear in court Thursday.

The hearing occurred in the Tuscarawas County Courthouse at New Philadelphia. Many of Mills’ family members and supporters attended the proceeding, as did Shoup family members and supporters, and media representives. Among the crowd of 55 to 60 who packed Judge Edward O’Farrell’s Common Pleas courtroom were Shoup’s parents and both sets of his grandparents.

“We are here today, fundamentally, because Ms. Mills’ trial counsel did not defend her,” Parsons told the three-judge appellate panel. “He did not defend her rights, and he engaged in behavior which could not be considered reasonable trial strategy.”

“In this case, where a woman has been sentenced to 15 years to life, it is not that much to ask for a hearing,” Parsons argued. “It costs a lot more to incarcerate someone for the rest of their life than it costs for a simple hearing to explore the substantive grounds for relief provided in the post-conviction petition and the supporting evidence outside of the record.”

Mills’ appeal is based on a technical legal issue – whether her lawyers presented enough evidence following conviction to entitle her to a hearing to develop that evidence more fully.

Parsons argued that the trial judge, Common Pleas Judge Elizabeth Thomakos, erred in ruling that Mills was not entitled to such a hearing.

Mills’ appeal is legally termed a “post-conviction appeal,” meaning it must address issues that did not appear in the formal trial record.

One of the issues in this appeal is her new lawyers’ assertion that a juror at her trial did not disclose that he was the brother-in-law of a New Philadelphia police dispatcher, whose department investigated Shoup’s death.

Paula Brown, another of Mills’ new lawyers, said after Thursday’s arguments that the juror issue is important because “it shows the ineffectiveness” of her former legal counsel.

“You don’t pick up a juror questionnaire that has that question not answered,” Brown said.

If the question had been answered “no,” Brown, said, that would have been fine. “Maybe you move on, and you don’t question it,” she said, “but it was blank. It was the only juror questionnaire that I looked at that had that left blank – and he never asked him about it.”

“And it really doesn’t matter who he was related to,” Brown said regarding the juror. “It was the ineffectiveness of (the defense lawyer) not asking the question.”

Laube, the assistant attorney general, stressed that no new evidence was presented by defense lawyers Thursday and that affidavits presented by two witnesses already were in the trial record. “We are not here to retry the case from a lower court,” she said.

Regarding the juror’s failure to reveal he was related to a New Philadelphia police dispatcher, Laube said there was nothing to indicate that he was not truthful. She also noted that the person he was related to was a dispatcher, not a police officer.

If the appellate judges grant their request for an evidentiary hearing, the case would go back to Thomakos. “We would have a hearing,” Parsons said. “She would make a determination on the merits. She would decide whether or not we were entitled to relief.”

Another appeal by Mills was denied in August by the 5th District Court, and the Ohio Supreme Court refused to hear the case.