Woman convicted in babysitting death seeks federal appeal

By Lee Morrison , The Times-Reporter
Posted 3/22/2011

NEW PHILADELPHIA — Marsha Mills is appealing to federal court her conviction in the 2006 death of a 2-year-old New Philadelphia boy whom she was babysitting.

The 44-page appeal has been filed in Ohio Northern District Court in Akron.

Judge Sara Lioi has referred the case to Magistrate Judge Vernelis K. Armstrong in Toledo. Armstrong will review the case and make a recommendation to set the case for trial or dismiss it. Lioi can accept the recommendation and act on it or deny it.

The case was filed in federal court after all appeal options at the state level had been exhausted.

Ohio’s Fifth District Court of Appeals upheld rulings in the case by Tuscarawas County Common Pleas Court Judge Elizabeth Lehigh Thomakos. The Ohio Supreme Court refused to hear the case because it does not involve any substantial constitutional question.

Mills, 60, was convicted and sentenced in June 2007 after a jury found her guilty of two counts of murder, felonious assault and child endangering in the death of Noah A. Shoup. She was sentenced to life in prison with parole eligibility after 15 years. She is serving her sentence in the Ohio Reformatory for Women in Marysville. The prosecution maintains Shoup died a violent death, while the defense contends he died after falling down a short flight of outside steps onto concrete.

Mills is being represented in the federal appeal by attorneys David L. Doughten of Cleveland and Jeffrey Helmick of Toledo. Doughten is a New Philadelphia native. The Ohio Attorney General’s office represents the prison warden in all such cases.

Current Tuscarawas County Prosecutor Ryan Styer said Tuesday, “Although I was not in office when that case was prosecuted, I always respect verdicts of juries. I do not believe it is appropriate for further comment, because we are no longer involved in the case.”

While in the appeals process at the state level, Styer sought and was granted permission to transfer the case to the Ohio Attorney General’s office. That was to avoid any conflict of interest as Styer’s staff includes Assistant Prosecutor Michael Ernest, who helped prosecute Mills, and Assistant Prosecutor Amanda Miller, who was second chair on Mills’ defense team.

The appeal asks the judge for a new trial and to conduct a hearing so that proof can be offered concerning the allegations of the appeal and to permit Mills civil discovery of all information “as is necessary to develop the factual basis for her claims.”

Her attorneys contend Mills was wrongfully convicted based on the improper admission of “junk science” by a prosecution witness; improper restriction on the presentation of the defense’s case; and prosecutor misconduct regarding “improper comments (that) deprived Mills of her right to a fair trial.”

Another contention is that Mills received ineffective assistance from trial counsel, Public Defender Gerald Latanich, who allegedly failed to object to “irrelevant and prejudicial” autopsy photos that had little relevance to the boy’s cause of death. The appeal further contends that Latanich was ineffective in his direct examination of Dr. John Plunkett, who testified for the defense.

The appeals attorneys contend that ineffective counsel allowed hearsay materials into evidence and “admission of these documents denied Mills her right to confrontation” of witnesses or those making the statements.

Several aspects of the appeal involve testimony by the prosecution’s expert pathologist, Dr. Daryl Steiner of Akron Children’s Hospital.

Over two months prior to the trial, it was reported that Dr. Steiner erroneously had determined that two other children had suffered injuries as a result of shaken baby syndrome, according to the appeal.

The appeal also contends information that would have impacted Mills’ sentencing was withheld, and that Latanich failed to fully investigate Steiner’s background. The appeal also claims that Latanich allegedly failed to confront Steiner “with evidence that he had given erroneous medical opinions in the past.”