JUDGE KIMBLER'S BLOG HAS QUITE A "TEAM" !

Quite accidentally, the blogger stumbled across Judge Kimbler's Blog.  Judge Kimbler has to be given credit for posting various recently decided cases and makes the attempt to make the law available to the common man, like the blogger.  In fact, Lapdog Collier would be well served by reading Judge Kimbler's blog whenever he takes a break from TAMPERING WITH AND ALTERING "OFFICIAL" TRANSCRIPTS.

Thee blogger, however, takes issue with Judge Kimbler's selection of his blog's "team members," at least one of whom has taken significant steps to conceal the true facts of recent decisions of the Ninth District Court of Appeals pertaining to cases tried in the Medina County Court of Common Pleas.

Take, for example, the following post appearing on Judge Kimbler's blog:

Note how Judge Kimbler's "team member" soft-sells the PROSECUTORIAL MISCONDUCT the Ninth District Court of Appeals found in the Labriola case.

Excerpts from the Labriola Decision are shown below:

ASSIGNMENT OF ERROR I

 

THE PROSECUTOR’S REMARKS DURING CLOSING ARGUMENT AND

FAILURE TO PROVIDE ALL EVIDENCE ROSE TO THE LEVEL OF
PROSECUTORIAL MISCONDUCT WHICH DEPRIVED MR. LABRIOLA OF
HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF HIS 5TH, 6TH, AND
14TH AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

{¶24} Labriola argues that he was denied his constitutional right to a fair trial based
 on improper conduct by the State. This Court agrees. 

¶25} Labriola first argues that the State’s repeated comments during closing argument about his lack of credibility and other witnesses’ credibility deprived him of a fair trial.

{¶26} Although the State is generally accorded a certain degree of latitude during

closing argument, “[t]he prosecutor is a servant of the law whose interest in a prosecution is not merely to emerge victorious but to see that justice shall be done. It is a prosecutor’s duty in closing arguments to avoid efforts to obtain a conviction by going beyond the evidence which is before the jury.” (Internal citations omitted.) State v. Smith, 14 Ohio St.3d 13, 13-14 (1984). As an initial matter, the State [Mustafah Razavi] “must avoid insinuations and assertions which are calculated to mislead the jury.” Id. at 14, citing Berger v. United States, 295 U.S.78, 88 (1935).

{¶27} This Court has adopted the Ohio Supreme Court’s test in evaluating a claim of
prosecutorial misconduct arising during closing argument. We must determine “whether the prosecutor’s remarks were improper and, if so, whether the remarks prejudicially affected the defendant’s substantial rights.” State v. Kirby, 9th Dist. No. 23814, 2008-Ohio-3107, ¶ 23, citing Smith at 14. Specifically, a prosecutor may not express any opinion as to the credibility of a witness or as to the defendant’s guilt. Kirby at ¶ 23. For example, the Ohio Supreme Court has concluded that comments by the State referring to the defendant’s evidence as “lies,” “garbage,”and “[a] smoke screen” went “well beyond the normal latitude allowed in closing arguments and [was] clearly improper.” Smith, 14 Ohio St.3d at 14. A reviewing court focuses not merely on the culpability of the prosecutor, but rather considers the trial record as a whole to determine whether the defendant received a fair trial. Kirby at ¶ 23, citing State v. Lott, 51 Ohio St.3d 160, 166 (1990).

 

{¶28} During closing argument, the State [Mustafah Razavi] repeatedly commented on Labriola’s    testimony as untruthful, implausible, and full of lies. For example, in comparing Labriola’s  testimony to that of other witnesses, the assistant prosecutor [Mustafah Razavi] asserted: “You only heard that from Mr. Labriola who, by the way, his testimony is untruthful and I’ll point out a lot of ways why it’s untruthful.” Labriola objected to this statement, arguing that the prosecutor “has no idea whether it’s truthful or not. That’s misleading.” When directed by the trial court to rephrase, the State [Mustafah Razavi] continued by asserting that “this man right here, Vincent Labriola, his testimony is full of mistruths and lies. It’s clear as it can be and that’s my argument to you.” Later, the State [Mustafah Razavi] informed the jury: “You heard what I call and what I submit to you is false testimony of the   
Defendant * * *.” The assistant prosecutor [Mustafah Razavi] asserted that Labriola’s “excuses” were “implausible” and that he “in fact, lied.” The State argued that “if * * * you’re Vincent Labriola, and I submit to you a liar as he has been throughout this case when he testified, you think up   another lie for that * * *.”

{¶29} In addition, the assistant prosecutor commented on Labriola’s explanations, stating that “[t]hat affects his credibility. You don’t accept every story.” The State even went so far as to effectively inform that jury that they must either believe or discount all testimony from any single witness. The State argued that Labriola wanted the jury to believe the State’s witnesses as their testimony aligned with his but not when it did not: “That’s not the way it works. That’s not the way human beings work. That’s not the way that 12 people that are peers that are deciding the case decide credibility.”

{¶30} In his rebuttal argument, the assistant prosecutor asserted that the State did not present the testimony of Steven Combs because it did not want “to parrot your lies * * *.” In conclusion, the assistant prosecutor told the jury that the State “has been an honest broker of the evidence in this case[,] * * * characterizing the evidence in a more believable fashion.”

{¶31} Finally, the State commented on the credibility of some of its witnesses, going so
far as to emphasize the witnesses’ traits to bolster their credibility. After recapping the testimony of Chris Adam and Ryan Sweeney, the assistant prosecutor stated: “I suggest to you that they were very credible in their testimony. Frankly, they’re very likeable and straight forward.”

{¶32} This Court concludes that the assistant prosecutor’s repeated comments about Labriola’s untruthfulness crossed the line into impropriety. See Smith, 14 Ohio St.3d at 14. Moreover, we conclude that the State’s repeated and egregious misconduct prejudicially affected  Labriola’s substantial rights so as to deprive him of a fair trial. Even after being directed by the trial court at one point to rephrase, the assistant prosecutor only more emphatically called Labriola a liar. In fact, the crux of the State’s argument was that Labriola lied under oath, while the State’s witnesses told the truth. Under the circumstances of this case, the State’s misconduct deprived Labriola of his constitutionally protected right to a fair trial. Thus, as the State’s remarks prejudicially affected the defendant’s substantial rights and undermined the integrity of he proceeding, Labriola’s first assignment of error is sustained.

THE NINTH DISTRICT COURT OF APPEALS HAS SENT A MESSAGE TO CORRUPT MEDINA COUNTY PROSECUTOR DINO HOEMAN AND HIS MINIONS: LYIN' AND DENYIN' BEFORE THE JURY, AS A STANDARD OPERATING PROCEDURE, IS NO LONGER ACCEPTABLE.