Was Mills Jury Lost?

By Renee Brown, The Times-Reporter
Posted 6/18/2008

Attorneys for Marsha Mills urged the 5th District Court of Appeals to overturn the Dover woman’s conviction for murder during oral arguments Tuesday in the Tuscarawas County Courthouse at New Philadelphia.

“An innocent woman is sitting in prison,” said attorney Paula Brown of Columbus. “It is always tragic when a child dies. We ask the court not to compound this tragedy by keeping an innocent woman in prison.

“The lead detective in the case had it right – it was a freak accident.”

Extra deputies were brought in for the hearing, during which arguments were made before dozens of supporters and family members for Mills and the family of Noah A. Shoup of New Philadelphia.

A jury found Mills guilty last year of the 2-year-old boy’s May 2006 death at her residence. County prosecutors maintained the boy died a violent death at the hands of his baby sitter, while Public Defender Gerald A. Latanich tried to prove the boy fell down a short flight of outside steps and landed on concrete.

The three appellate judges, William Hoffman, John Wise and Julie Edwards, frequently asked questions and engaged in discussions with attorneys from both sides during the 80-minute presentation.

Brown said errors made by Common Pleas Court Judge Elizabeth Lehigh Thomakos and Mills’ trial counsel, Latanich and Public Defender Amanda Miller, allowed the jury to become lost and wrongly convict the 57-year-old grandmother of the boy’s death.

Brown criticized Thomakos for allowing the prosecution to present numerous gruesome photos, for allowing the prosecution to comment on the fact Mills did not testify in her own defense and for not allowing the defense to present pertinent information. Brown criticized Mills’ trial attorneys in general for not defending her.

Many of Brown’s arguments related to the fact the defense expert was not permitted to show the jury a videotape of a small child (who later died) falling to concrete or photo-graphs of other children with bruised faces. She said the prosecution repeatedly showed 53 gruesome autopsy photographs of Noah Shoup for sympathy because “the state knew it didn’t have a case.”

Assistant Prosecutor Michael Ernest defended the use of the autopsy photographs, saying they were critical to the case because they show what was happening both on and inside the boy’s body after the incident.

Ernest said the defense expert could not authenticate the videotape or the bruise photographs so they were properly excluded by Thomakos. Hoffman questioned why the expert was permitted to testify about the videotape and the photos, but the jury was not permitted to see them.

“That seems to be relevant evidence,” Hoffman said. “It seems inconsistent to allow the expert to testify but not show what he was basing his testimony on.”

The prosecution never claimed it was impossible for a child to die from a short fall, Ernest said. The state maintained the boy died from a beating inflicted by Mills.

Play-Doh casts made of the back steps at Mills’ former residence by a prosecution witness – used in testimony about marks found on Noah Shoup’s neck – also were the topic of much discussion. A defense expert said the marks were consistent with a fall down the steps in which the neck hit the edge of one step.

Brown said Thomakos should not have allowed the molds into evidence. Ernest said it was just a tool used by a prosecution witness.

“He wanted to see if that was consistent with the evidence,” Ernest said. “He took molds of the steps to compare. He said his opinion had not changed – the death was not from a fall down those steps.”

A comment made by Assistant Prosecutor Scott Mastin during closing arguments pointing to the fact Mills did not testify in her own defense also drew Brown’s ire. A defendant in a criminal case has a constitutional right not to testify and the fact a defendant does not testify cannot be used against him or her when deciding guilt or innocence.

Hoffman and Edwards also related their concern about the comment, which pointed out there was no testimony from anyone that the boy went to the edge of the porch and fell down the steps. “The only person that would have been there was the defendant,” Edwards said.

“Aren’t you commenting on the defendant? What else could that be saying, other than ‘we didn’t hear from the defendant?’”

Ernest said Mastin was commenting generally about the entire body of evidence.

No decision on the appeal was made Tuesday. The judges will review the lengthy trial transcript and other documents before issuing a decision in writing.

A request by Mills’ attorney for a new trial is pending before Thomakos.

Mills is serving a sentence of life in prison with parole eligibility after 15 years are served.