The Marshall File

Sealed reports, sober allegations, serial bungling. Welcome to the most cursed case in Cuyahoga County.

Harlem Ohio Theatre, 1519 Euclid Avenue 2 p.m. Saturday, February 23, and 3 p.m. Sunday, February 24



The man behind the mess: Charles L. Marshall.
The man behind the mess: Charles L. Marshall.
There's a simple rule of thumb when sorting through court cases: the fatter the file, the weirder the case.

It's an important reminder for anyone ambitious enough to wade through file No. 349190, otherwise known as State of Ohio vs. Charles L. Marshall. Four boxes worth of motions, briefs, and transcripts sit in the basement of the old county courthouse -- documents that provide only a whiff of the circuitous path this case has taken through the justice system.

Over the last five years, the aggravated murder case -- for the 1996 slaying of pizzeria manager Rocco Buccieri -- has involved five prosecutors, five judges, and three defense attorneys. There have been two trials, two appeals, one mistrial, and several memorable quotes. "There go the 12 dumbest people I've ever seen," Marshall once said of the unlucky souls selected to decide his fate.

There may not be a more tortured matter before a county court.

"You have 18,000 indictments a year in Cuyahoga County. Out of those, 99 percent are handled properly," says one of the attorneys involved in the case. "But there are some cases you look at and shake your head in disbelief."

And it may get weirder yet. Sometime in the next several weeks, lawyers for both sides will review a report regarding a mistrial in Marshall's case last year -- a report that has been under seal for months. The findings could clear the way for yet another trial. Or they could prevent the county from ever again prosecuting the man it believes is responsible for murder.

Five years ago, it all seemed straightforward enough. Three days before Christmas in 1996, two masked gunmen entered a Papa John's in Garfield Heights. They herded the employees into the back and demanded that the manager, Buccieri, open the safe. That's when fellow employees heard gunshots. Buccieri was found lying on the floor, shot in the head and stomach.

Marshall and another man, Robert Martin, were arrested a month later, after a similar holdup at a Maple Heights Long John Silver's. Soon after, Martin told police he was at the Papa John's when Marshall killed Buccieri.

Marshall went on trial in September 1997. Prosecutors called 29 witnesses, including Tony Haynes, who said Marshall, a childhood friend, had admitted to the killing. Marshall was convicted of aggravated murder.

Though he frequently interrupted prosecutors and Judge Timothy McGinty with conspiracy claims during the trial, Marshall didn't seem altogether worried about his conviction. "There are four things you can count on in life," he said, moments before McGinty sentenced him to death. "Death, taxes, Cal Ripken, and me winning this case on appeal."

His words proved prophetic. During the penalty phase of the trial, McGinty neglected to tell the jury that it could recommend life without parole in lieu of the death penalty, which is required by law. A new judge, Carolyn B. Friedland, set aside the verdict and ordered another trial.

The decision still rankles prosecutors. "The reality is, there was a conviction," says Dominic DelBalso, the assistant prosecuting attorney now handling the case. "The problem was supposedly improper instructions to a jury concerning the penalty phase. Since that was the problem, you shouldn't overturn a conviction; you should address that issue."

Yet the Marshall case's bad juju had only just begun. In February 2001, Marshall was tried again. If anything, the case against him was more compelling the second time around. An appeals court ruled that Assistant County Prosecutors Ed Walsh and Kimberly Mahaney could use a bevy of evidence that wasn't available for the first trial.

Missing, however, was Haynes. After collecting a stash of reward money, he went AWOL following the first trial. Friedland, who presided over the retrial, refused to allow his police statement to be admitted as evidence.

It would prove a crucial decision. On the morning of February 16, two days after the jury began deliberations, Friedland received a note from the foreman. "We, the jury, have an exhibit in our possession that was referenced during the trial but never introduced as evidence," it read. Somehow, Haynes's statement had ended up before the jury anyway. Friedland declared a mistrial, citing "prosecutorial misconduct."

Friedland later backed off from that statement, but the allegation was still significant. If substantiated, it could be the death knell for the state's case. "If the prosecution is found responsible, the defense could argue that it would be double jeopardy to try him again, because it's the state's error," says Adam Thurschwell, a Cleveland-Marshall College of Law professor who also served on the defense team for Oklahoma City bombing conspirator Terry Nichols.

It could also mean ethics sanctions or even criminal charges against whoever did it, Thurschwell says.

Not that anybody has been in a rush to find out who those people are. After Friedland's decision, County Prosecutor William D. Mason appointed former Assistant U.S. Attorney James Wooley to investigate the incident.

That was a year ago. But in keeping with the oddball history of the Marshall case, the report remains secret, even though it was completed months ago. And questions about the report -- and why it remains sealed -- are now greeted with reactions normally reserved for inquiries about government experiments in the Nevada desert.

Friedland's office says the judge cannot say anything. Defense attorney McGowan, whose profession is usually as tight-lipped as a tipsy auctioneer, says the fate of the report is out of his control.

DelBalso, the assistant county prosecutor, is similarly taciturn, saying only that it's the judge's decision. The timetable for releasing the file, he says, is a matter of simple logistics. "It just has to do with the judge's schedule and the attorneys' schedules," he says. "Every time we come up with a date, somebody is either in trial or on vacation."

Even the man who sealed the document, visiting Judge Joseph Cirigliano, offers little explanation. "It's the judge's decision not to make that public at the present time," he says. The reason? "Because I chose not to."

It's not the most compelling logic, especially since the incident involves some fairly simple questions regarding possible malfeasance by public employees. Both sides expect a hearing within the month to examine the report -- a move that could clear the way for Marshall's third trial or make it impossible for the county to ever go after him again for Buccieri's killing.

But the process has taken so long that Walsh, the lead prosecutor for both trials, no longer works in the office. He retired in December, taking advantage of the county's buyout offer to longtime employees -- a decision that had nothing to do with the Marshall case, says DelBalso. (Walsh could not be reached for comment.)

Marshall, meanwhile, isn't going anywhere. Though the murder case remains in limbo, he was convicted in 1997 for a series of robberies. McGinty sentenced him to 168 years in prison. By the time his sentence expires, the murder case may finally be resolved.

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