Blood & Justice 

How a family crisis turned a career prosecutor into a dogged defense attorney.

Outside the weathered Cuyahoga County Juvenile Court building, the sky is clear and bright. A glorious morning teases with the promise of summer and sweet escape from winter's fickle ways.

But inside, the light seems filtered through a brown paper bag, the air smells of old carpet and bad cologne, and the laws of space and time have ceased to exist. Nothing here ever, ever starts on time. And there is scarcely space for all the bodies and business that need tending.

In one area, parents, kids, cops, and social workers squeeze together in a manner that tests the bounds of good hygiene and prudent fire policy. Lawyers scurry from room to room, disappearing into the labyrinth of corridors and hidden corners reminiscent of Harry Potter's Discount House of Justice.

It's another normal Wednesday morning.

Amid this spill of bodies, a tall, natty-looking lawyer strolls down the hall, moving with all the urgency of continental drift. Today, like most days, Tony Kellon is wearing a dark suit, a conservative tie, and a world-weary smirk. It's a common face in the building; after a while, it seems, every troubled kid, every sad case, every dumb decision starts to look the same.

This isn't the place where Kellon thought he'd be practicing law. It wasn't long ago that he was a comer in the Cuyahoga County Prosecutor's Office, trying murderers, drug dealers, and rapists in some of the county's biggest cases: The shooting of a Goodwill Industries executive in 1994. The murder of a pizza shop manager in 1997. The killing of an off-duty Cleveland cop in 1998.

"Tony got it," says Gordon Friedman, a prominent defense attorney. "Unlike a lot of prosecutors, especially under [County Prosecutor William D.] Mason, he understood what life was like out there. He was a talented young attorney."

In an office where burnout is high, rewards are few, and pay is modest, Kellon was a lifer. He couldn't imagine doing anything else.

But in January 2000, all that changed. He was denied new case assignments, threatened with disciplinary action, and told he'd probably be fired.

Rather than take a demotion or a pink slip, Kellon resigned. The controversy created headlines, but the attention quickly faded. Kellon became a public defender. His recompense was a pay cut and a ticket to juvenile court. After a decade in The Show, he was pitching relief in Pawtucket.

But Kellon refused to disappear, and he didn't shut his mouth. Instead, two years on, Tony Kellon has become one of the most dogged adversaries of the prosecutor's office: both a committed defense attorney and a vociferous critic of his old bosses. "I think they're unethical. I think they're not pursuing justice. I think they mistreat people," he says.

Kellon's ire is more than the sad squawking of a jilted ex-employee: After 10 years at a job he loved, Kellon was given a very simple choice. He could preserve his career as a prosecutor -- or he could help his brother stay out of prison.

"There's one central thing, one experience, that shapes every person's life," says an attorney who's close to Kellon. "This was his thing . . . They turned a career prosecutor into the most passionate defense attorney I've ever known."

"I couldn't see myself doing anything else," Kellon says. It's a Sunday afternoon, and he's wearing jeans and a hooded pullover with "Gettysburg" stitched on the left chest, a souvenir from one of his many trips to the battlefield. As he talks, he munches on popcorn, leftovers from a night at the movies with his two young children.

Though 41, he should be carded on a regular basis. His baby face betrays nothing of middle age. Laconic and soft-spoken, comfortable with silence, he is not the portrait of an angry man. "I saw myself as a career prosecutor, somebody who would go in the trenches and try cases. I planned to retire as a prosecutor. When I realized I would have to leave the office, I was crestfallen."

He has told the story many times before, yet it still seems to fill him with a sort of head-shaking wonder. It's as if he were explaining a UFO sighting or a natural disaster.

"For a long time, I think he still thought of himself as a prosecutor," says Lynn Loritts, a close friend who was recently fired from the prosecutor's office. (Loritts has a pending EEOC complaint against the prosecutor's office, filed prior to her dismissal.)

"He was a prosecutor's prosecutor," Ron James, one of Kellon's former supervisors, would later recall. "He liked trying cases. He liked helping younger prosecutors. It was what he wanted to do."

Growing up, Kellon never aspired to be a lawyer. He was a shy kid, a mediocre student who cared far more about sports than school. It wasn't until he attended Central State University that he even began to take his grades seriously. His family was surprised when he decided to go to law school.

"Frankly," says his father, Donald. "I didn't think he'd be tough enough."

At Cleveland Marshall College of Law, Kellon was an engaged, inquisitive student, but not someone who fit the profile of a future prosecutor, remembers Friedman, who taught him there. "He certainly didn't appear to be someone destined for that. He seemed to be sensitive to issues of personal freedom, privacy, rights of the accused."

After graduation, Kellon worked as a mediator in the Cleveland city prosecutor's office. It was a fine job for a young attorney, but Kellon wanted to try cases. His break came in 1990. From his work with the city, he had come to know several assistant county prosecutors. When a job opened up in the office, they urged him to apply, then lobbied on his behalf. That February, then-County Prosecutor John T. Corrigan hired him.

His family greeted the news with mixed emotions; proud of his success, they were circumspect about his role in the criminal justice system. "To be honest, I was always a little uneasy about it," says his mother, Constance. "Here was a black man working in an office that was prosecuting young black men."

Kellon wasn't blind to the politics of his profession, that he would serve a system that disproportionately affected blacks. But he was attracted to it nonetheless. "Working in the prosecutor's office would give me the best opportunity to try cases," he says. "I'm a very competitive person. I have always been involved in competitive activities. I guess I'm a conflict freak."

The freak had found his future. He was diligent and curious, eager to learn and quick to give credit. "Tony was the kind of guy," says Tony Bondra, one of Kellon's earliest supervisors, "that when I walked by his office at 3:30 in the afternoon, he'd still be preparing his files, when a good portion of people were visiting with others or talking amongst themselves."

"He cared very deeply about the quality of work he did for the prosecutor's office," says Common Pleas Judge Janet Burnside. "He's the kind of person who people in my generation are happy to see enter the profession of law."

Even so, Kellon also has a talent for pissing people off, a skill he seems to employ most often with bosses and judges. He can be stubborn and blunt, as skeptical of others as he is sure of himself. As a prosecutor, he would sometimes dismiss cases he thought were bullshit, even if his supervisor wanted him to proceed. "My responsibility was to do justice," he says. "I'm a professional. I'm an attorney. If it's my case, I think I have a better idea of what would be appropriate than a supervisor."

Once, when Stephanie Tubbs Jones, who succeeded Corrigan as county prosecutor, called a meeting to address criticism from inside the office that had reached the pages of The Plain Dealer, Kellon told her in front of the entire staff: "The reason you don't get any respect is because you're black and you're a woman."

But that sort of confidence could also pay dividends in a courtroom. By the mid-'90s, Kellon was frequently trying cases with Ed Walsh, one of the most experienced attorneys in the office. In 1994, the two won a capital case against Tyson Dixon, who'd shot and killed a drug dealer named Maurice LeFlore and an innocent bystander, Goodwill Industries executive Joyce Woolley. It was a crime so pointless that Judge Anthony O. Calabrese Jr. called for Dixon's execution to be televised.

Two years later, Walsh and Kellon teamed up again. Charles Marshall and Robert Martin were accused of murdering Rocco Buccieri at a Papa John's pizza shop in Garfield Heights. Friedman, who represented Martin, recalls going against Kellon at trial. "He sat second chair, but he really outshone [Walsh] by a considerable amount," he says. "His closing argument, I thought, was phenomenal . . . He really stuck it to me."

Martin and Marshall were both convicted.

By the late 1990s, Kellon hoped his success would propel him to a spot in the major trials division, which handles rapes and murders -- the office's highest-profile cases. He had hoped that Tubbs Jones would promote him. But when she decided to leave the office for a seat in Congress, Kellon figured his chances for a promotion were leaving with her. "I was resigned to the fact that she wasn't going to do it," he says. "And I just said, 'Well, I'll just go and be the best prosecutor I can.'"

In January 1999, however, just days before Mason would be sworn in as the new county prosecutor, Tubbs Jones called Kellon into her office: He was being promoted to the major trials unit.

Then she said something else that proved prescient: "Stay visible. Don't go into hiding because of what's going on with your brother."

In early December 1998, a 15-year-old girl gave a statement to the Cleveland Heights Police. Over a six-week period that summer, she said, Jeff Kellon had sexually assaulted her on five separate occasions. Hours after taking her statement, police searched Jeff's home for evidence to corroborate her story. They found condoms, sex toys, and clothing the girl had described. In a bedroom nightstand, they also found plastic bags containing cocaine residue.

The previous spring, the girl had met Jeff at Cleveland Heights High School, where he was an assistant track coach. During track practice, she helped him keep statistics. Jeff would talk about his wife and kids; the girl, about her troubles at home. After the school year ended, Jeff asked her if she was interested in making some money over the summer, baby-sitting or housecleaning.

The girl told police that Jeff first called her on a Saturday in early July, wanting to know if she was up for a motorcycle ride. They drove out to the Chagrin River Reservation, where Jeff pulled over near a secluded spot along the river. She said he held her hand and kissed her. "Not an ordinary kiss," she would later write in her diary. "It was a full-blown kiss."

After he removed her clothes, "He licked my legs and neck and . . . well you get the idea," she wrote. "Let's just say if having oral sex meant you lost your virginity I would not be a virgin anymore."

She told police that the other four incidents took place at Jeff and Julie Kellon's home, when she'd come over to baby-sit. Once, Jeff had her perform fellatio; another time, he used a vibrator on her, she said.

Tony and his parents were floored by the allegations. To them, it just didn't sound like Jeff. "To think that, as a black man, he would put a white girl on the back of a motorcycle and drive through however many cities, he wouldn't be that dumb," says Donald. "It doesn't make sense."

The youngest of three kids, Jeff was a gregarious, active child and an exceptional athlete, playing basketball, football, and running track. For a time, he fenced competitively. In 1988, as a member of the track team at Tri-C, he was named a junior college All-American in both the high hurdles and the long jump. Not long after, he joined the Marine Corps, where he was eventually assigned to guard nuclear submarines. While in the service, he got married and finished his college degree.

After Jeff returned to Cleveland in 1993, Tony helped him get work, first as a security guard and later as a probation officer for the county. By 1998, the two brothers had both attained a sort of middle-class idyll. Married with children, they each had a home in Cleveland Heights, not far from their parents.

While they had starkly different personalities, the two remained close over the years. "We were six years apart, but we were about as close as two brothers could be," says Tony.

In May 1999, six months after Jeff's home was searched, a grand jury handed down a 15-count indictment. The charges: gross sexual imposition, sexual battery, corruption of a minor, kidnapping, rape, and drug possession.

The breadth of the indictment, the number of charges, the age of the victim -- all of it made it unlikely that Jeff would emerge unscathed, Tony knew. "I was a prosecutor for 10 years," he says. "When you're indicted, they want their pound of flesh . . . I figured he'd take a hit."

Because of Tony and Jeff's employment with the county, the case was turned over to Dean Holman, the Medina County prosecutor. That fall, Common Pleas Judge Burt Griffin granted a request by Jeff Kellon's defense attorney, Gerald Messerman, to hold two separate trials. There would be one trial for the drug charges and a second trial for the sex and kidnapping charges.

Like every other profession in the world, prosecuting attorneys have their own set of unwritten rules. Many share with cops the messianic belief that they aren't just doing a job, they're saving a lot of unsuspecting souls from a lot of very bad people. There's right and there's wrong, and they have no doubt which side they're on.

And in unofficial code, rule No. 1 is pretty clear: If shit comes down, you don't point fingers, you don't whine, and you don't break ranks. "You're supposed to be on the same side," says former prosecutor George George. "Everything is reduced to good and bad."

In December 1999, a year after the allegations surfaced, Jeff Kellon went on trial for the drug-possession portion of his case. As part of Jeff's defense, Messerman asked Tony to testify. He could describe the layout of his brother's house as well as provide character testimony.

When Tony Kellon got on the stand, however, he proved far more devastating to the prosecution's case than anyone had anticipated. During the state's presentation, a Cleveland Heights detective named William Stross stated that he didn't know any member of the Kellon family. Tony Kellon remembered things differently. Only months before, in fact, he had been assigned to prosecute a rape case Stross had investigated. It was a hard case to forget. Tony had dismissed the matter -- a decision, he says, Stross didn't agree with.

Yet Kellon was only getting started. The Cleveland Heights Police admitted that there were no photographs of the bags in which the cocaine residue was found in Jeff's house. The reason, they said: The bags wouldn't show up in the pictures because there was too much reflection from the plastic.

The day before he testified, however, Tony had taken pictures inside Jeff's house at the behest of Messerman. As Tony revealed on the stand, he had no trouble getting plastic bags to show up in the photographs.

The testimony was a major blow to the state's case. Not only had Tony contradicted one of the lead detectives, he had made the Cleveland Heights Police look monumentally stupid. The day after Tony's testimony, the jury acquitted Jeff on the drug charges.

Tony Kellon knew there would be consequences for his actions. He had, in a very big way, broken the code. An assistant county prosecutor challenging a police officer's testimony was one thing. Taking pictures to help a defendant was quite another. "I knew it wouldn't sit well," he says.

To this day, Kellon casts his decision in a light of pursuing justice -- not just trying to help his brother beat a case, a case he maintains was plagued by sloppy police work. "I thought it was my duty to pursue the truth," he says.

Some of Kellon's closest friends disagree with him, however. Ron James believed Kellon should not have directly involved himself. "I don't think he should have gotten himself in that position," says another friend.

His bosses were even less sympathetic. Following his brother's acquittal in the first trial, Kellon stopped getting assigned new cases. Then a month later, just before Jeff's second trial was to start, Tony Kellon received a memo from Robert Coury, first assistant to County Prosecutor Mason. He was ordered to attend a pre-disciplinary conference, where he would be "provided the opportunity to respond to allegations of employee misconduct surrounding your participation in the criminal case State v. Jeffrey Kellon."

Among other things, Kellon was accused of "unauthorized disclosure" of confidential office information. There was also the "misrepresentation of fact" to his superiors regarding his testimony. More serious, he was accused of acting as an agent of the defendant -- his brother -- and aiding the defense attorney "in conflict with the duties of this office."

It was, to say the least, a curious document. The "unauthorized disclosure" charge stemmed from Kellon's testimony about the rape case he and Stross had worked on together. The allegation that he had misled his superiors came from their understanding that Kellon had anticipated testifying only about his brother's character and the layout of his house.

Yet most curious was the allegation that Kellon had somehow tried to undermine the Cuyahoga County Prosecutor's Office in the case. Officially, the office wasn't even on the case, having recused itself more than a year earlier -- specifically to avoid any conflict over Kellon's employment.

"If you recuse yourself from a case, that means you keep your hands off it," James later testified.

In early February 2000, Jeff's second trial started. When Tony told Robert Coury he would likely be called to testify once again, Coury demanded to know what he would say.

"He was trying to box me in," says Kellon.

It wouldn't matter. Fearing Kellon's presence would focus on the uproar in the prosecutor's office rather than on his client, Messerman decided against calling him.

On February 9, 2000, Jeff Kellon was found guilty of rape, possession of criminal tools, and corrupting a minor. He was acquitted of kidnapping and gross sexual imposition charges.

Three weeks later, with his pre-disciplinary conference still looming, Tony Kellon resigned from the Cuyahoga County Prosecutor's Office.

Officially, no one in the prosecutor's office will talk about Tony Kellon. Unofficially, he retains a prominent place as the office's bête noire, an arrogant maverick who crossed the line.

As Carmen Marino, former head of the office's major trials unit, would tell The Plain Dealer after Kellon's resignation: "We prosecute rapists. We do not defend them . . . This judge should have held Anthony Kellon in contempt for trying to sabotage this child's case. She had already been raped once, and we were not going to permit this prosecutor to abuse his authority and victimize her again." (Never mind that Kellon's "sabotage" came during the trial on the drug charges, not during the rape case.)

Today, Marino says, "He went out of his way to become an investigator for his brother. You can't be a prosecutor doing that sort of work for the defense. That's a terrible conflict of interest."

Still, the Kellon-as-Judas view relies on a particularly disturbing interpretation of a prosecutor's duties in Cuyahoga County. In several hearings and post-trial briefs in Jeff's case, the Cuyahoga County Prosecutor's Office has continued to defend its actions toward Tony.

While an assistant county prosecutor, the office argued, Tony Kellon had an attorney-client relationship with the Cleveland Heights Police Department. Therefore, he had a "mandate to protect the 'confidences' and 'secrets' of that client and to refrain from conduct that prejudiced or diluted his loyalty to that client in any way."

In short: A prosecutor's duty wasn't to seek justice; it was to serve the police -- no matter what.

Judge Griffin didn't agree. At a hearing on motion for a new trial several months after Jeff's conviction, he chided prosecutors for arguing their interpretation of Tony Kellon's former responsibilities as a prosecutor. "The nice thing about being a prosecutor is, the primary responsibility is to identify the truth and do justice," he said. "The police are not [the prosecutor's] client. The victim is not their client. The public interest is their client, and the public interest is justice."

Later, in a written decision on the whole affair, Griffin would be even more blunt: "It is to be expected that Anthony would desire to help his brother in any way that he could. Anthony's 'assistance in preparing a defense for his brother' ... has not been demonstrated by the state to be unethical," he wrote. "The Cuyahoga County Prosecutor's Office engaged in a pattern of misconduct which, intentional or not, resulted in the intimidation of a defense witness."

In late March, in her small wood-paneled courtroom, Juvenile Court Judge Janet Burney called a hearing to scold Tony Kellon. The two know each other well. Over the previous year, Kellon had been assigned Burney's room by the public defender's office, meaning he represents the vast majority of kids who come before her. Including Gregory Scruggs.

Last December, Kellon was one of the attorneys who represented the 13-year-old Shaker Heights boy, who was accused of shooting his father after years of physical and psychological abuse.

It was a long, drawn-out trial, in which the defense team employed a novel approach. For the first time in an Ohio courtroom, a juvenile defendant used "battered child syndrome" as an excuse. Simply stated, it argued that Gregory Scruggs was justified in killing his father because he could conceive of no other way to escape his abuse.

For Kellon, one of the prominent players in the whole drama, the Scruggs case was more than a trial. It was a sort of coming-out party, a testament to how far the pendulum had swung. Once a loyal son of the prosecutor's office, he had become one of Scruggs's most strident advocates. "He's a different person than he was, and he's a different lawyer," says Lynn Loritts.

Indeed, it was hard to miss the vigor with which Kellon tore into prosecution witnesses -- or into the prosecutors themselves. At one point during the proceedings, Judge Burney looked at Kellon and George George, another former prosecutor on the Scruggs defense team, and said: "I'm not here to settle any old scores between the defense and the prosecutor's office ... You take that someplace else."

Kellon doesn't pretend that his experience with that office hasn't affected how he looks at the law. He knows he is far less trusting of law enforcement, of his former colleagues, of the system in general. "I don't have the patience to listen to a rationalization of a mistake," he says. "I don't have much patience for dissembling by the state."

Nor is he apt to keep his thoughts to himself. In the middle of the Scruggs trial, Burney reduced the charge against Scruggs from murder to involuntary manslaughter. Yet she still found him delinquent and sentenced him to an Ohio Department of Youth Services prison. Kellon disagreed with the decision and hasn't kept quiet about it since, telling the media, church leaders — anyone who will listen — that Scruggs belongs in a psychiatric facility rather than prison. "I believe we had enough evidence to conclude that he shot his father in self-defense. We have to live with the decision, but I don't have to agree with it."

When Public Defender Jim Draper issued a memo saying he didn't want any attorneys from the office to talk to the media about the Scruggs case, Kellon and his colleagues simply ignored it. Says Kellon: "The consensus was, we had a First Amendment right to speak."

Two weeks ago, Kellon asked Burney to recuse herself from the case, which is scheduled for a review hearing in June. Kellon found out Burney went to school with Scruggs's aunt, which none of the lawyers knew until earlier this year. Burney was not pleased with Kellon's request. Not only has she not taken herself off the case, she decided to punish Kellon for his demeanor when he made the demand. She fined him $250.

Says Kellon several days later: "I thought she was going to lock me up."

Jeff Kellon didn't go to prison right after his verdict. For more than two years, his attorneys argued motions for a new trial, an appeal to the district court, a petition to the state Supreme Court.

Success was mixed. In the spring of 2000, after a petition by defense attorney Messerman, Judge Griffin threw out the rape charge, the most serious count on which Jeff Kellon had been convicted. Instead of facing years in prison, he'd be facing months.

In late February of this year, the state Supreme Court declined to hear his case. On March 6, Jeff was taken to the Lorain Correctional Institution to begin serving a nine-month sentence.

Tony Kellon doesn't tend to worry about him much. If anything, the anxiety of the trial was much harder than the certainty of the sentence. In eight months, if all goes well, Jeff will be out of prison. Then everyone will at least start to move on.

"My brother is a pretty tough guy," says Kellon. "I knew that whatever situation he was in, he would adapt to."

It is a glorious April morning, and Tony Kellon is sitting at his desk inside the public defender's office's new digs on Prospect Avenue. The move happened a month ago, but Kellon hasn't had time to unpack all his stuff. A painting of a 19th-century soldier on horseback leans against the wall. It's a portrait of Henry O. Flipper.

Born a slave, Flipper was the first black man to graduate from West Point. He served with distinction on the western frontier with the 10th Cavalry. In 1882, however, while stationed at Fort Davis in Texas, Flipper was accused of embezzling government funds. He was acquitted of the charge, but convicted of conduct unbecoming an officer and dishonorably discharged. Years later, when the army reviewed the case, it found that Flipper had been set up, singled out for his race. In 1976, the army changed his discharge to an honorable one. In 1999, President Clinton gave him a full pardon.

"It's been a trying thing for the family to fight this long battle, to confront delays and bureaucratic indifference," Clinton said at the ceremony. "It teaches us that, although the wheels of justice turn slowly, still they turn. It teaches us that time can heal old wounds and redemption comes to those who persist in a righteous cause."

Kellon couldn't say it any better. He looks over at the picture. "I was always intrigued by him," he says. "He's kind of a hero of mine now."


More by Andrew Putz


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