Eighth District: Cleveland Attorney’s Bribery Conviction Upheld
A three-judge panel affirmed the bribery conviction of a Cleveland attorney who joined his nephew, prominent attorney Anthony O. Calabrese III, and another attorney in attempting to offer $50,000 to a woman to drop rape charges against their client.
The Eighth District Court of Appeals affirmed last week the conviction of G. Timothy Marshall, who along with Calabrese and criminal defense lawyer Marc Doumbas, were implicated in an attempt to bribe the victims of Thomas Castro. Castro pled guilty to two counts of sexual battery and in exchange, rape charges were dropped against him.
All three judges on the appellate panel were visiting from the Columbus-based Tenth District Court of Appeals. Marshall and Doumbas were convicted in November 2013 on two counts of bribery and separately appealed their convictions. Calabrese pled guilty in Cuyahoga County to bribery and a pattern of corrupt activity for his participation. He is presently serving nine years in federal prison on other charges and was disbarred by the Ohio Supreme Court on June 3.
Calabrese represented Castro on business matters and when Castro was charged with rape, Calabrese brought in Doumbas and Marshall to assist in the representation. Marshall was charged for trying to bribe one of Castro’s alleged victims by first offering money if she agreed to drop her charges, and later, after Castro pled guilty to sexual battery, offering her money if she agreed to say something nice about Castro at the sentencing hearing.
The charges against Marshall stem first from a meeting he arranged with a former employee of his who worked with one Castro’s victims. Marshall had the employee, Doumbas, and a few others meet at lunch and discuss if the employee could find out if the victim was interested in a $54,000 civil settlement for her “pain and suffering” and another $6,000 for her attorney. The employee believed Marshall’s offer was that if the victim took the offer, the criminal charge would go away.
The victim turned down the offer and then told the prosecutor in the Castro case.
After Castro took a plea agreement, Marshall contacted attorney Harvey Bruner, who represented the victim’s boyfriend in another unrelated matter. Marshall sought to have Bruner ask the boyfriend if he would speak to his girlfriend about reaching a civil settlement. In exchange for $50,000, the victim was asked to “say something nice to the judge” about Castro at sentencing. Bruner told the boyfriend he had concerns but could represent the woman if the settlement were conducted in a legal manner. The boyfriend did not relay the offer to the victim, but called the police.
At Marshall’s trial, the non-lawyer witnesses testified to the events and both sides called expert witnesses to discuss the ethical and legal aspects of his offers. Robert Glickman testified that it was not a crime for a defense attorney to initiate settlement discussions with a crime victim. He drew the analogy that is was similar to a theft case, where a victim might drop the theft charge if restitution has been paid, or informing the judge at sentencing that restitution has been paid in an effort to mitigate the sentence.
Prosecutors presented George Jonson, an attorney that represents the legal liability insurance fund covering Ohio judges, who testified that criminal defense attorneys can negotiate civil settlements with crime victims, but those settlements cannot be conditioned on requesting the charged be dropped or requesting that the offender not be sent to prison. Jonson testified that those actions would be a violation of Ohio’s Rules of Professional Conduct.
The jury convicted Marshall and he was sentence to a year in prison. He appealed his sentence claiming, among other things, that the jury verdict was not supported by the evidence and that Jonson testified to irrelevant and prejudicial matters that prevented him from receiving a fair trial.
Writing for the appellate court, Judge William Klatt noted that Marshall objected to Jonson testifying to the ethics code violation, which he claimed was not relevant because he was being charged with bribery. However, Marshall’s defense was based on the testimony of his own expert witness that testified that his conduct was ethical and permitted because he was simply attempting to settle a potential claim against his client.
“The state presented Jonson’s testimony to refute this claim and to demonstrate that Marshall’s conduct was unethical. Thus, Jonson’s expert testimony was relevant and helpful for the jury to understand and determine a relevant factual issue in the case,” Judge Klatt wrote.
To convict Marshall of bribery, the jury had to find that Marshall had to have promised, offered or gave the victim any “valuable thing or benefit” with the purpose of corrupting her or improperly influencing her testimony in any official proceeding. Judge Klatt wrote there is no doubt that $50,000 is a valuable thing and while Marshall argues he was intending to enter into settlement negotiations, the victim never initiated a civil lawsuit against Castro, and Marshall never attempted to assess the value of her potential claim to demonstrate that $50,000 was a fair offer.
“We also find that the bribery convictions are not against the manifest weight of the evidence,” Judge Klatt wrote. “The outcome of the case turned on the jury’s determination of the purpose behind Marshall’s communications. The jury was in the best position to assess the credibility of witnesses and the context of Marshall’s statements in determining whether Marshall acted with purpose to corrupt.”
The jury “obviously rejected” Marshall’s theory, he concluded, and the appellate court found the trial was fair.
Judges Lisa L. Sadler and Julia L. Dorrian concurred in the decision.
State v. Marshall, 2015-Ohio-2511.
Criminal Appeal From: Cuyahoga County Common Pleas Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 25, 2015
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