Trial and Error

Judge McGinty's enemies try to bring him down, one appeal at a time.

Spectators filled the courtroom's wooden benches, thirsting for blood like Cubans at a cockfight. They had come to see Judge Timothy McGinty take the witness stand.

The sheer number of defense lawyers in attendance made it clear that this was a hostile audience. McGinty had spent the previous 24 years as a tenacious prosecutor and Common Pleas judge, making countless enemies. They were not about to miss this rare morning in November, when it was his turn to take the hot seat.

He was testifying in the case of John Peters, who had received a life sentence in 1988 for raping his eight-year-old daughter.

But last year, Peters was granted a rare hearing for a retrial. Defense lawyers had found compelling evidence that McGinty, who prosecuted the case, had hidden evidence helpful to Peters.

To his enemies, this moment would provide final proof that McGinty would do anything to win a conviction -- even if it meant putting innocent people in prison.

When he first ran for the Common Pleas Court in 1992, his campaign buttons read: "A tough prosecutor for judge. Take back your courts." McGinty won by a landslide. But he soon proved that he wouldn't be a go-along, get-along colleague.

He immediately demanded reform, complaining that the judicial system was slow, inefficient, and corrupt. To ensure that no one could accuse him of the same, he was usually the first judge to clock in and the last to leave.

He wanted to put an end to the court's patronage system and bring in outside experts to analyze how justice in Cuyahoga County wasn't being served. He fought to end straight-release -- the routine of releasing suspects before they were charged -- and won.

"What you see with Tim is very little subtlety," says Tom Hayes, executive director of the Ohio Lottery Commission and McGinty's best friend. "He's passionate, and when he believes he's right, he'll kick your door in to tell you so. You can't ignore him, because he won't go away."

He was hailed as a fair, hardworking judge. Attorney Angelo Leonardo remembers a case involving a 20-year-old who'd killed his friend in a drunk-driving accident. McGinty, notoriously tough on DUI offenders, was the presiding judge.

"He intervened in the case on behalf of the state and myself, and came up with a very fair resolution," Leonardo says. "It was a very sensitive case, and he handled it with the utmost care."

The public loved the nail-spitting Irishman from West Park. When the judge was up for reelection, Hayes collected contributions. McGinty told him to send them all back, claiming that his loyalty could not be purchased.

"People say he's abrasive and curt and aggressive," Hayes says. "They can say he is abrasive, but is he right? I think he is."

Not everyone agrees. McGinty quickly earned the disdain of then-Administrative Judge Richard McMonagle when he accused McMonagle of ignoring the pay-to-play politics that colored the assignment of defense attorneys for the poor.

"I always thought he was butting in where he should not," says McMonagle. "Only time will tell if he's right."

McGinty also caught flak for his brash tactics in the courtroom. He made headlines when he sentenced a part-Cherokee woman to write a weirdly race-conscious 10-page paper about alcoholism among Native Americans after she pleaded guilty to drunkenly attacking two cops.

He even attracted the ire of shock jock Howard Stern, whom McGinty disparaged during a hearing for a WMMS employee who cut a WNCX wire to interrupt a live broadcast of Stern's show. Instead of focusing on the defendant's actions, McGinty used the hearing to sound off about Stern. On the 10th anniversary of the case, Stern proved he hadn't forgotten the judge by roasting McGinty on the air.

The judge also had fun at the expense of defense attorneys.

When lawyer Patrick Leneghan once showed up late for court, McGinty attacked him for his tardiness. Leneghan claimed he'd gotten a flat tire.

"Bring me the tire," McGinty said.

Leneghan went down to his car and removed the flat from his Mustang. He then rolled it to McGinty's courtroom on the 21st floor, where the judge remarked that he was teaching Leneghan a lesson.

To this day, a photo of Leneghan and his tire remains tacked to McGinty's door. It's emblematic of the pleasure McGinty gets from messing with defense attorneys -- a skill he perfected in his days as a prosecutor.

McGinty first became an assistant Cuyahoga County prosecutor in 1982.

"He was one of the hardest-working prosecutors I knew," says former prosecutor Carmen Marino. "We'd each be working on trials that were equally difficult, but where my file was two inches thick, he'd wade through two boxes."

Friends say that his aggression stems from his work ethic. His zeal earned him the respect of County Prosecutor John Corrigan, who gave McGinty his pick of cases. McGinty selected some of the highest-profile homicide and sex cases of the '80s, including that of Ronnie Shelton, who raped at least 28 women on Cleveland's West Side.

Despite pressure to settle, McGinty aggressively pushed for a trial before Judge McMonagle. "McGinty brought in every single one of the victims," McMonagle says. "You'd wonder sometimes, 'Is this overkill or not?' But when you heard these people testify, it was something. It was some of the worst stuff I ever heard."

In the end, McMonagle sentenced Shelton to 3,198-years, the longest sentence in Ohio history. "McGinty's role had a lot to do with it," McMonagle says.

He even earned the grudging respect of some defense attorneys. "He's a pain in the ass," says attorney John Carlin. "But to his credit, he worked harder than any other prosecutor in that office that I'm aware of."

But as he climbed the ladder, McGinty also accumulated enemies. During trial, he'd often snipe at other attorneys with snide asides. In one case, he accused the defense of putting the jury to sleep, though his own closing statements were twice as long. He'd exhaust both judge and defense with perpetual objections.

"He always pushed it," Marino says. "He wasn't afraid to challenge anyone. I'm sure he upset a lot of defense attorneys."

Attorney Jeff Kelleher remembers the time McGinty got under the skin of defense lawyer Tom Shaughnessy. After a lunch recess, McGinty insisted that he could smell alcohol on Shaughnessy's breath and asked the judge to give him a breathalyzer test.

"I'll take a breathalyzer test," Shaughnessy responded, "if you give him an IQ test."

McGinty's "very vain and is probably proud of that story," Kelleher says. "He likes to pull the wings off flies."

Harold DeBoe, a retired Mayfield Heights detective who worked with McGinty on several cases, remembers the same.

"One time a defense attorney started pounding on his desk with his fist while McGinty was talking," he says. "McGinty asked the judge to hold the guy in contempt of court for ruining public property. It was pretty funny."

But there was a less humorous side to his behavior, say defense lawyers. McGinty was so sure of himself -- and so obsessed with winning -- that he would go to any length for the sake of victory, including hiding evidence and lying in court. For proof, they point to the alarming number of times he's been cited for misconduct.

"If rules or procedures got in his way, he was like a bull in a china shop," Carlin says.

McGinty admits that the Anthony Michael Green case was the biggest mistake of his career.

"The worst thought ever is to think you put an innocent man in jail," he says. "I feel so bad about that case, because I was wrong."

It was 1988 when a dying cancer patient was raped at the Cleveland Clinic Center Hotel, where Green briefly worked. The woman claimed that a black man named "Tony" had broken into her room, stolen her money, and raped her. She picked Green's photo out of a lineup of employee IDs.

Green, who went by his middle name, Michael, said it couldn't have been him -- he'd been fired by the Clinic months earlier.

At trial, the victim, frail from chemo, wobbled into the courtroom. McGinty repeatedly referred to her withering condition. He also guided her through the horrifying night she was raped.

She had just gotten off the phone with her mother when there was a knock at the door. A hand slipped in and grabbed her around the neck. The man had a knife. She gave him her money. He told her to take her clothes off. As she removed her pink robe, she told him she was dying.

He told her to put her clothes back on, but before leaving, he changed his mind and raped her. When he was finished, he cleaned his penis off with a washcloth, dropped it on the floor, and left.

"Do you see the man in this room that forced his way into your room on May 29, 1988?" McGinty asked her.

She pointed to Green.

During closing arguments, McGinty painted Green as a drunk who bragged of his sexual conquests.

McGinty disregarded the fact that none of Green's fingerprints were found in the victim's room, nor had detectives ever located the clothing he wore or the knife he supposedly carried that night. And in the days before DNA, neither the semen nor the pubic hair from the washcloth -- which McGinty referred to as Green's "calling card" -- could be pinned to the accused.

He was nonetheless found guilty and sentenced to 10 to 25 years.

Green spent that time filing appeal after appeal. In one, he claimed that he wasn't given a fair trial due to prosecutorial misconduct, noting that McGinty had called him "a fraud, a phony, and a liar." An Ohio Appeals Court acknowledged the prosecutor's "intemperate" comments, but claimed they were harmless errors and upheld the conviction.

Then, in 2001, Green was finally exonerated through DNA from the washcloth. But he'd already burned away 13 years.

When the news hit the stands, Rodney Rhines, the real rapist, suffered pangs of guilt. He turned himself in and got five years.

By then, the star prosecutor had been elected a county judge, thanks to the gift of an Irish surname and his reputation as a ball-buster. And though he'd since gained an equal reputation for railing against the "inefficient" and "corrupt" court system, he was loath to scrutinize his own shortcomings.

Before McGinty got around to apologizing to Green, he first accused him of being partly to blame for his conviction, saying that Green shouldn't have boasted of his sexual conquests, an accusation Green has always denied.

McGinty's legion of adversaries now had real ammo against him. And they knew that if there was one mistake that big, there had to be more.

McGinty is adamant that Green was his only mistake. The record says otherwise.

A review of McGinty's cases shows his ferocity hasn't always served him well. He has been cited for prosecutorial misconduct at least eight times, mostly for making prejudicial remarks.

"That's ridiculous!" he says. "Every prosecutor gets accused of misconduct. Have you ever seen a trial without error?"

Still, it's an alarming figure, in light of the fact that, since 1970, only 35 prosecutors nationwide have been cited for misconduct more than five times, according to the Center for Public Integrity, a nonprofit investigative journalism group.

"It's pretty simple," says Neil Gordon, who studies prosecutorial misconduct for the think tank. "A prosecutor's misconduct means that innocent people are convicted, while guilty people are set free to commit more crimes, or it can also mean that a guilty person must be retried, which wastes time and resources."

In the majority of decisions, judges have found McGinty's misconduct harmless, though they've acknowledged his penchant for crossing the line. That's not uncommon. "Nationwide, most misconduct is ruled harmless error," Gordon says. "Eighty percent of cases were decided in favor of the prosecutor."

In one case, Rasheem Matthews was convicted of murdering a man during a drug deal at the King-Kennedy housing projects.

McGinty's case against Matthews relied heavily on testimony from an eyewitness, Theodore Roulette.

But Roulette had a hefty criminal record as well as a reputation for lying. Roulette's wife even testified that her husband "was a liar who could not see without his glasses."

Still, McGinty needed Roulette's testimony to put Matthews behind bars. He also knew that Roulette had recently been indicted for seven felonies. McGinty offered him a plea: If he testified, he could get off with only three misdemeanors and no jail time.

During trial, McGinty adamantly denied the existence of a plea bargain. He insisted that Roulette was giving testimony because he was a moral man and that McGinty would never offer him a bargain in exchange for his testimony.

An appeals court later upheld Matthews' conviction, but reprimanded McGinty for his blatant deception. "It is a sad commentary on our criminal justice system to even think that deals are made with witnesses and not disclosed," said the court's decision.

In another case, Donald Williams was convicted of aggravated murder. According to numerous witnesses, Williams had paid a gunman $500 to kill a man who'd stolen drugs and cash from him. On Christmas Eve 1982, the thief was murdered.

During trial, McGinty built his case largely on Williams' past, rather than on the murder itself. He pointed out that Williams had once hired a juvenile to deal drugs for him, though it had nothing to do with the crime at hand.

An appeals court later found McGinty's actions to be "impermissible," though they were once again deemed harmless.

McGinty's record of misconduct has rarely changed verdicts, but in one case, it may have allowed a guilty man to go free.

In 1989, McGinty helped put George Martin in prison for raping his adopted son, John.

The previous year, John had attempted suicide. During his stay at the hospital, he told a counselor that his father had not only abused him, but also raped him.

"It took a lot for my brother to finally talk about all that," says Cathy Garcia, another of Martin's adopted children.

Cathy corroborated John's stories of abuse. She told social workers and police that Martin would smack them with wet two-by-fours and kick them down flights of stairs, and how he'd call John a "chink" and Cathy a "slut" and a "nigger."

"We were slaves to this guy," Cathy says.

Martin, a teacher and part-time real-estate agent, would force Cathy, John, and their other adopted brother to rehab the houses he was selling, she says. "We did whatever he needed us to do for his own benefit," Cathy says. "If it wasn't good enough, we'd get the shit beaten out of us."

He also sexually abused them, Cathy says. "The sexual abuse was never to the same extent with me that it was with John. I couldn't press charges, because the statute of limitations had run out for me. I just wanted to stand up with my brother and corroborate his story. I'd already washed my hands of George. I had nothing to gain."

Martin, who maintains his innocence, says what his daughter calls abuse was simply strong parental discipline. "Cathy is hateful. She allowed herself to be manipulated by the system so she could get even with me, for whatever reason."

A soft-spoken 71-year-old with a cotton-white beard, Martin walks with a cane, his jeans held up by thick blue suspenders. On a snowy January morning at a Cleveland Heights McDonald's, he explains how his adopted children turned against him.

"Before it all happened," Martin says, he had a lot of things going for him. He and his wife, Anne, raised five of their own daughters in addition to three adopted kids. The family was a fixture at John Carroll's Rec Plex and vacationed in Vermont twice a year. The children were all home-schooled by Anne and attended religion classes taught by Martin.

But as their children moved into their teens, Martin and Anne realized that their adopted kids were having problems. Martin placed them in counseling and filled their schedules with extracurricular activities. Despite his efforts, 15-year-old John's behavior only worsened.

Martin claims that when John attempted suicide, the vulnerable teen was tricked by a manipulative social worker into alleging that Martin was sexually abusive. "He was a confused teenager, and they took advantage of his resentment towards me," Martin says.

His wife and biological daughters stood by his side.

But in the courtroom, it was Cathy and John's words against Martin's.

McGinty got the case a few months after finishing up with Anthony Michael Green. Cathy remembers him fondly. "McGinty just says it like it is. For me, I was 19 at the time, and I was freaking out. It was the first time in front of my adopted father that I had to say everything he'd ever done to me. McGinty allowed me to take my time. He wanted me to be comfortable. He was very down-to-earth."

McGinty's prosecution was brutal. He compared Martin to Hitler, claiming that his adopted children of color lived in Martin's world much as Jews had in Nazi Germany. McGinty even questioned Martin's raising of purebred German shepherds, suggesting that he was obsessed with race. He drew connections between the case and Jesse Owens' winning Olympic performance in Berlin, comparing Cathy and John's bravery to that of Owens.

He called Martin a "disturbed individual" and a "dictator," claiming that John attempted suicide "to protect the family" and do "what the mother wouldn't do, to protect the kids."

Little of McGinty's prosecution actually focused on the rape allegations. Still, in 1990, a jury convicted Martin of rape, endangering children, and sexual battery. He was sentenced to 10 to 25 years.

Two years later, Cathy got a call from her brother John. He told her that Martin had been released. "I got sick. I couldn't believe it," she says.

A federal appeals court had overturned the conviction, citing McGinty's misconduct.

The eight-page decision analyzes McGinty with disgust. "Such unseemly comments by the prosecutor compromised Martin's right to a fair trial," it says. "Here we find especially deplorable the prosecutor's attempt to suggest to the jury . . . a similarity between Martin and Adolf Hitler . . . these unwarranted characterizations reach the level of impermissible 'foul blows.'"

The case was thrown back to Cuyahoga County. The second time around, Martin pleaded guilty, with the promise that he'd get no more prison time and his record would be expunged.

It's easy to understand why McGinty was so ruthless in prosecuting John Peters.

"This guy is a scumbag, a total lowlife," says Detective Harold DeBoe, who investigated the case.

Even Peters shares that opinion as he sits in a conference room at Grafton Correctional. "I don't deny that I was a bad man," he says. "I regret everything I ever did."

In 1988, John Peters was living with his wife, Nancy, and their nine-year-old daughter, Anna, in a modest house in Mayfield Heights. "It wasn't particularly clean," says DeBoe. "It was how I'd expect people who were poor to live -- if a parent was a drug addict."

Peters drove a tow truck for a nearby gas station, burning much of his income on coke and marijuana. He was married to his high school sweetheart, who cleaned houses and raised their daughter.

Peters was a jealous husband. Paranoid and high, he'd often accuse Nancy of sleeping with other men. "Nancy's mother never liked me," he says. "I believe I wasn't what she wanted for her daughter. I didn't have a criminal background, but, me being the asshole I was, when we got married, I acted even worse."

Peters would beat his wife in fits of anger, trying to get her to admit to infidelity. "She looked beaten down," DeBoe says. "She had this long brown hair and could have been a pretty woman, except she was so worn-down looking, a real battered wife."

Nancy would often end up in the Hillcrest Hospital emergency room with bruises and lacerations. One winter, after she claimed that Peters had put her arm through a window, she walked to the hospital in her bare feet, according to court records.

Hillcrest filed numerous police reports alleging domestic violence, but Nancy never pressed charges.

The beatings were no secret at Anna's school, Lander Elementary. When Nancy came to pick up Anna, she often had bruises and black eyes. Officials never interfered, because Nancy insisted that she was already seeking help, according to court records.

Then, on a February afternoon in 1988, Nancy arrived at Lander to pick up Anna. Nancy's arm was bandaged; she was shaken and disoriented. The school counselor decided he'd seen enough and called the county.

That same day, social worker Vera Perkins-Hughes interviewed Anna, who used anatomically correct dolls to show that she sometimes slept in bed with her parents while they were having sex. At times they included her, kissing her all over. Once, she said, her father penetrated her with his penis and his finger, but didn't put them in all the way. A boy at summer camp did the same thing. She said it never hurt and it never made her feel bad.

Perkins-Hughes immediately removed Anna from her parents' custody and went to see Detective DeBoe, who still remembers the first time he laid eyes on Anna. "She was a bit pudgy, mousy brown hair," he says. "Her clothes were sort of faded, and she had on this short, short miniskirt in the middle of winter. She was trembling and shaking."

For McGinty, the case was a no-brainer. "The amount of evidence was as long as your arm," he says.

In his mind, John Peters was clearly a monster.

Still, there wasn't any physical evidence of rape, and McGinty didn't want to subject the child to the ordeal of testifying in court. He offered Peters a deal: If he pleaded guilty, he'd get three to five years.

Peters admitted to using drugs and beating his wife. But he wasn't about to plead guilty to raping his daughter.

McGinty built his case on Peters' history of wife-beating and drug use. Around the time Anna was taken away, Peters had voluntarily checked into rehab at Ridgecliff Hospital for cocaine and marijuana abuse. McGinty claimed he was hiding. He also accused Peters of spending upward of $40,000 on coke -- though he made less than $30,000 a year.

Detectives recovered no evidence of child abuse from the Peters' home, but they did find hardcore porn in the closet, pinups on the walls, and plenty of drug paraphernalia. McGinty entered it all as evidence. "If you've got pornography sitting under the table and Playboy pinups in a house with kids, well, I'd turn around and leave," says McGinty. "Those are warning signs."

Still, none of it was evidence of rape, and Peters' attorneys weren't pleased. "We objected to a lot of the stuff they introduced as evidence," says lawyer Mark Kaiser. "Spousal abuse is certainly one of the most reprehensible things you can do, but it's a totally independent act from raping your daughter. He wasn't being tried for beating his wife; he was being tried for raping his daughter."

But while McGinty felt he had an arsenal of damning proof, he wasn't sharing it with defense attorneys. If a prosecutor finds evidence favorable to the defense, by law he must hand it over. But three times Kaiser filed for access to evidence. Three times he got nothing.

When Kaiser requested access to the social worker's file or medical records, McGinty argued that it violated the victim's right to privacy. The judge ruled in his favor.

"During the course of the case, we were concerned we weren't getting discovery," Kaiser says. "We were so desperate for access to evidence, we even subpoenaed the county."

The defense's suspicion that McGinty was hiding evidence only grew when the social worker, Vera Perkins-Hughes, took the stand.

As Tony Walsh, Kaiser's co-attorney, cross-examined Perkins-Hughes, he discovered her file sitting on the stand. He quickly reviewed it to find a sexual abuse survey Anna took. She had answered "no" to the question, "Has anyone touched your private parts?"

"We found that file by sheer luck," Kaiser says.

Then Walsh asked Perkins-Hughes about her follow-up interview with Anna. He wanted to know whether Anna had ever recanted.

"She didn't recant, saying it never happened," the social worker said. "She said, 'Well, I'm going to say I made it up.'"

"Did you make a note of that? Did you write it down?" Walsh asked.

"No," Perkins-Hughes said.

A week later, a jury found Peters guilty on two counts of rape, six counts of gross sexual imposition, and one count of child endangerment. He was sentenced to life.

Then, in 2002, Peters scraped together $1,000 to hire a private investigator. "I heard there was a journal that Anna kept," he says. "I wanted him to find that. I thought it might hold the truth."

The private eye never found the diary. But he did find Mayfield Heights police records that offered a surprise revelation: Anna had recanted her accusations three times before trial.

None of the documents was ever presented in court, and one recantation proved that Vera Perkins-Hughes lied on the stand when she said that Anna had never recanted her story. "As God is my witness, I never saw those documents, and I reviewed every single paper in that file," Kaiser says.

The documents also confirmed Kaiser and Peters' worst suspicions -- McGinty had hidden evidence.

Peters wrote a letter detailing the disclosures to Rod Kee, director of the Association of Innocent Inmates of Ohio. "A lot of people write to me to say they are innocent," Kee says. "I research cases, and if an inmate has documentation to prove his innocence, we help them out. And Peters had proof."

Kee hired attorney Ian Friedman, who got a rare hearing for a retrial based on the newly discovered evidence.

November 15, 2005: McGinty sat on the stand as Friedman held up a document that McGinty had filed earlier that morning. It was a 1988 motion to suppress evidence. Stapled to it was one of Anna's recantations, which McGinty claimed matched the evidence he had provided defense attorneys nearly 20 years earlier.

But when Friedman compared McGinty's copy of the motion to the one in the Clerk of Courts' files, he discovered an unsettling difference. Unlike McGinty's records, the Clerk of Courts' copy had no staple mark. The recantation had never been filed.

"He tried to fool the courtroom," Kee says. "He falsified his filing, trying to show he submitted evidence he did not. It was amazing, watching him squirm in his chair while he stared at those documents. It was something to see."

McGinty never addressed the discrepancy, but he proved an unruly witness. He interrupted the prosecutor and the defense equally. He also took a shot at a defense lawyer, claiming he "wasn't a very capable attorney."

The judge frequently had to remind McGinty to "just answer the question," to "wait till there's a question in front of you, please," or "Excuse me, cross-examination. He asks, you answer."

"He didn't like answering the questions," Kee remembers.

He was sure that McGinty's testimony was enough to grant Peters a retrial. But on March 7, 2006, Judge Herman Inderlied denied the motion. Anna's "statements . . . that the sexual abuse did not occur [were] brought to the jury's attention," Inderlied wrote.

For McGinty, the decision is simply one more triumph in the face of his detractors. "I provided [Peters' attorneys] with full discovery," he says. "Why they didn't use it in cross-examination is beyond me."

Still, McGinty's enemies will not be quieted.

Long ago, McGinty accused attorney Tom Shaughnessy of showing up drunk to trial. Now Shaughnessy -- who describes himself as McGinty's "worst enemy" -- is accusing the former prosecutor of hiding evidence in the case of David Mapes, who was convicted of aggravated murder in 1982.

It's just one more round in a war that won't end anytime soon.