Prosecutors issue response to Mills appeal

By Renee Brown, The Times-Reporter
Posted 4/12/2008

Prosecutors in the Marsha Mills murder case filed their response to Mills' appeal Friday and urged the 5th District Court of Appeals to uphold the conviction.

After 12 days of trial and five hours of deliberations, jurors in Tuscarawas County Common Pleas Court found Mills guilty on June 15 of two counts of murder, one count of felonious assault and one count of child endangering as a result of the May 2006 death of 2-year-old Noah A. Shoup of New Philadelphia.

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.

On June 22, the 56-year-old Dover grandmother was sentenced to life in prison with parole eligibility after 15 years are served. The appellate court later denied a request to allow Mills to remain free pending appeal.

Assistant Prosecutor Michael Ernest prepared the 30-page brief after reviewing more than 1,500 pages of trial transcript and the 30-page brief filed by Mills' appellate attorneys in February.

Ernest stated Judge Elizabeth Lehigh Thomakos was correct in excluding a particular videotape and photographs used by a defense witness in arriving at his opinions because those items could not be authenticated. He also stated that Latanich could have asked for an evidentiary hearing on the Play-doh casts of the edges of the stairs used by a state's witness but he did not.

Ernest downplayed the importance of comments made by Thomakos to the jury after the trial was over. Thomakos stated she had been praying "that justice would be the victor and I think that prayer was answered."

The statement merely shows the judge prays, he stated. Mills' attorneys stated the comments give the impression that she'd decided early on that Mills was guilty and she had been praying the jury would agree with her.

Latanich didn't object to all of the gruesome photos of Shoup used during the trial, Ernest said in response to the defense argument that Thomakos should not have allowed them.

In his response to the claim that Mills was convicted on insufficient evidence, Ernest agreed the evidence presented against Mills was circumstantial. He stated the boy was fine when left in her care and hours later was unconscious.

Mills was the only adult present, she didn't call 911 and gave multiple versions of what occurred ­ all indications of her guilt, Ernest stated. He also said there was bruising to the boy's face that could be interpreted as a mark from being smacked.

Ernest also addressed the defense claim that not all of the court proceedings were recorded and the contention that should be grounds for a new trial. Mills' attorneys state the sidebar conferences, which included only the judge and attorneys, were not recorded via the court's recording system. Ernest states the assignments of error cited by Mills' attorneys do not seem to relate to any sidebar conferences. He stated Latanich would have noticed the sidebars were not being recorded when he reviewed the daily transcripts of expert testimony he requested.

Mills' attorneys do not demonstrate how the alleged errors made by Latanich fell below "objective standards of reasonableness," Ernest wrote, so that assignment of error should be denied.

Ernest also denied allegations of prosecutorial misconduct by comments made during closing arguments and said Thomakos sentenced Mills properly.

A reply brief filed on Mills' behalf likely will be filed yet this month. A three-judge panel from the appellate court will hear oral arguments in the case later this year and issue their decision in writing later.

In a related matter, Court of Appeals Judge W. Scott Gwin Friday denied a request by the defense to unseal the special juror questionnaires utilized during the trial. According to the request, the questionnaires were ordered sealed by Thomakos on June 5.

Gwin denied the request because the matter "appears to be unrelated to the ... appeal pending in this court." Ernest indicated he did not object to the unsealing. As a result of the denial, Mills' attorneys filed an identical request with Thomakos.