‘Jury lost its way’ - Mills attorneys say trial errors led to conviction

By Renee Brown, The Times-Reporter
Posted 2/8/2008

Attorneys for Marsha J. Mills have filed 30 pages of legal arguments they hope will convince the 5th District Court of Appeals to reverse Mills’ murder conviction.

Four alleged violations of Mills’ constitutional rights are included in the seven errors set forth by Mills’ defense team – attorneys Paula Brown, William Bluth and Richard Parsons of Columbus.

The trio studied the 1,500-plus page transcript and cited various errors they said were made by Tuscarawas County Common Pleas Court Judge Elizabeth Lehigh Thomakos, Assistant Prosecutor Michael Ernest and Public Defender Gerald A. Latanich during the 12-day jury trial in May and June.

Had the errors not been made, the outcome of the trial would have been different, defense attorneys argue in their brief.

After five hours of deliberations on June 15, jurors found Mills guilty 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. Prosecutors maintained the boy died a violent death at the hands of his baby sitter, while 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.

Advertisement Several things contributed to how “the jury lost its way,” according to the defense. Chief among them were 72 gruesome photos repeatedly shown to the five-woman and seven-man jury, Thomakos’ “unwarranted restrictions” on defense experts, “unwarranted leeway” given to prosecution witnesses and the “failure of the treating pediatricians to stay current on the pathology of trauma to children.”

The photos were prejudicial to Mills because they showed numerous bruises, which occurred either prior to the alleged incident, during medical intervention or during organ harvesting, according to Mills’ attorneys. Those should have not been shown because they were irrelevant, the attorneys argued.

Defense attorneys also stated Thomakos limited the testimony of one of the defense witnesses by not allowing the witness to show a video made by a woman in which her grandchild fell a short distance onto concrete and died. Thomakos also is criticized for allowing a prosecution witness to talk about an experiment he did with Play-Doh without conducting a required hearing on the information’s admissibility.

The defense team also maintained the jury arrived at its guilty verdicts despite reasonable doubt having been established by Latanich.

“In the end, two forensic pathologists, Drs. Plunkett (defense) and Sterbenz (prosecution) testified and disagreed as to the cause of death, but both admitted that each other’s theory was plausible,” the defense document states. “The lead detective called the incident what it is, an accident.”

The Columbus attorneys criticized Thomakos for failing to record all of the proceedings in the case. They state that none of the multiple in-chambers discussions regarding objections were recorded and “months later, no one can remember what was said.”

The defense team also criticized Latanich’s representation of Mills at trial, claiming he failed to object to various pieces of evidence offered by the prosecution and failed to effectively cross-examine the prosecution’s expert witnesses.

Before deciding whether to vacate the conviction and possibly send the case back to Tuscarawas County Common Pleas Court at New Philadelphia, the appellate judges must consider Ernest’s legal analysis of the case. His brief must be filed by March 28. A reply brief on Mills’ behalf will be filed in early April.

A three-judge panel from the appellate court likely will hear oral arguments in the case this summer and issue their decision in writing later.