Mills attorneys take case to high court

By Lee Morrison, The Times-Reporter
Posted 6/2/2009

COLUMBUS, OH — Attorneys for Marsha Mills are asking the Ohio Supreme Court to hear an appeal and clarify questions they raise about expert witness testimony.

The filing Monday asks the court to consider the case. Because of the sheer volume of requests, the court only hears cases that involve substantial constitutional questions or are of great public or general interest.

“We continue to strongly believe that Marsha Mills is innocent,” said attorney Paula Brown of Columbus. “We feel that we’ve raised some good issues on appeal, ones that the Ohio Supreme Court needs to look at. We remain hopeful that they will hear the case.” The state has 30 days to reply.

Mills, 57, of Dover was convicted of murder in the May 2006 death of 2-year-old Noah Shoup of New Philadelphia while she was baby-sitting him. She is serving a 15 years to life sentence in prison.

The filing makes eight points regarding the law. The primary one regards testimony for the prosecution by Dr. George Sterbenz, the Akron pathologist who conducted the autopsy of the boy. Sterbenz used Play-Doh molds to make his points about an injury on the back of the boy’s neck.

Defense attorneys contend that Sterbenz used “junk science” in his methodology because it has never been tested by other experts for reliability or solid scientific basis.

“A witness who has been qualified as an expert (per Ohio rules of evidence) may not provide an expert opinion that is based on an untested, potentially unreliable methodology, even if that methodology appears to be straightforward to a lay person,” the filing states.

The filing also contends that gruesome autopsy photos of the child that were admitted during trial were not relevant and were highly prejudicial. The 5th District Court of Appeals ruled that Mills’ attorney at the trial did not object, but her current attorneys contend that “failure to object to the admission of such photographs constitutes ineffective assistance of counsel.”

Ineffective counsel led to loss of due process and a fair trial, they added.

The filing also claims prosecutorial misconduct for comments prosecutors made at the trial, including “this woman’s guilty.”

“The outcome of a trial can be prejudiced by a prosecutor’s misconduct no matter when it occurs during the trial process, from jury selection to rebuttal closing arguments, especially when the prosecutor vouches for his witnesses and comments on the defendant’s silence, violating the defendant’s Fifth and Sixth Amendment Rights to Due Process and a Fair Trial and Counsel, respectively, as incorporated by the Fourteenth Amendment,” the filing states.