Tuesday, June 15, 2021
State of Ohio v. Joseph McAlpin, Case No. 2019-0926
Cuyahoga County Common Pleas Court
In re Adoption of A.K., Case No. 2020-1163
Eighth District Court of Appeals (Cuyahoga County)
Columbus Bar Association v. Natalie J. Bahan, Case No. 2021-0224
Logan County
Cleveland Man Who Represented Himself at Trial Faces Death Penalty for Double Murder
State of Ohio v. Joseph McAlpin, Case No. 2019-0926
Cuyahoga County Common Pleas Court
Joseph McAlpin was convicted and sentenced to death for the murders of the owners of a Cleveland used car business. When McAlpin went to the auto dealership in April 2017 to steal vehicles and their titles, he shot the two owners and their dog.
Because the trial court imposed a death sentence on McAlpin, he is entitled to an automatic appeal to the Ohio Supreme Court. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Men Make Plan to Steal Cars
On the afternoon of April 14, 2017, McAlpin talked with his brother Jerome Diggs Jr. and his brother’s friend Andrew Keener about making money by stealing titles and vehicles from a local business and selling the cars.
At about 5:20 p.m., the owners of Mr. Cars – Michael Kuznik and Trina Tomola-Kuznik – prepared to close their business for the day by parking vehicles near the exits of their lot to deter thefts. Near the same time, McAlpin, Diggs, and Keener drove to the area and parked on a nearby side street. McAlpin, carrying a firearm, walked to Mr. Cars and entered the business. Diggs and Keener remained in the vehicle.
McAlpin shot Kuznik and Tomola-Kuznik, along with their Doberman, Axel. Taking car keys and titles, McAlpin then called Keener, telling him the vehicles were ready. Keener walked onto the car lot, and McAlpin directed him to a Mercedes. Keener drove the Mercedes off the lot and picked up Diggs. McAlpin stole a BMW. The men traveled to the west side of Cleveland and left the Mercedes near a bar, according to Keener’s later testimony. Diggs and Keener got into the BMW with McAlpin, who drove to a side street where they parked the BMW.
Concerned that his mother and Kuznik hadn’t arrived home, Tomola-Kuznik’s son went to the dealership around 10 p.m. to look for them. He noticed the business was in disarray and saw a body on the floor. He ran outside and called 911.
Cleveland police discovered Kuznik and Tomola-Kuznik dead in the building, along with their Doberman, Axel. All had been shot in the head. The stolen BMW was found several days later. The Mercedes had been towed on April 16 and wasn’t located until September 2018.
In early June 2017, police were informed of a potential DNA match to McAlpin from multiple pieces of evidence found at Mr. Cars. Police arrested him.
Defendant Asks to Act as His Own Lawyer
McAlpin was indicted on dozens of counts, including aggravated murder, aggravated robbery, aggravated burglary, theft, injuring animals, and cruelty to animals. Capital, firearm, repeat-violent-offender, and other specifications were attached to the charges.
On June 28, 2018, McAlpin told the trial court that he wanted to represent himself. The court held a hearing a few weeks later to consider the request and discussed the decision with him. In July, McAlpin signed a written waiver of his right to an attorney, and the court agreed to his request and appointed standby counsel.
McAlpin’s trial before a jury began in March 2019. The prosecutor presented video security footage, cellphone records and search histories, and DNA evidence. Keener testified against McAlpin. The jury found McAlpin guilty of all counts, including the death-penalty specifications.
The penalty phase of his trial began in May 2019. In the penalty phase, mitigating circumstances are considered to determine the offender’s sentence. Six of McAlpin’s family members testified, and he made an unsworn statement. The jury recommended a death sentence. The trial court imposed the death penalty along with prison sentences for the other offenses.
In McAlpin’s appeal to the Ohio Supreme Court, he raises 17 legal arguments.
Attorney Necessary During Penalty Phase of Capital Case, Offender Argues
The Sixth Amendment to the U.S. Constitution gives a person accused of a crime the right to the assistance of counsel. In a 1975 decision, Faretta v. California, the U.S. Supreme Court ruled the accused’s right to counsel implicitly provides the right to represent oneself. At the time the Sixth Amendment was adopted, though, there weren’t separate guilt and penalty phases in death-penalty cases, McAlpin notes. He contends, then, that a right to self-representation during the penalty phase of a capital case can’t be inferred from the Sixth Amendment based on the structure and origin of its text or from Faretta.
The Sixth Amendment states the rights listed apply to “all criminal prosecutions.” McAlpin maintains that the penalty phase begins after a defendant is convicted, when the defendant no longer is the accused and the prosecution has ended. The right to represent oneself doesn’t extend to the penalty phase because that phase isn’t part of the prosecution of the crime, he argues.
His brief states, though, that a defendant is most in need of an attorney during the penalty phase of a capital case. The brief maintains that constitutional concerns arise when defendants want to represent themselves and outweigh a defendant’s right to choose self-representation. Letting McAlpin represent himself during the penalty phase was a “structural” error that requires the reversal of his convictions and sentence, the brief concludes.
Defendants Entitled to Represent Themselves in Death-Penalty Cases, State Responds
The Cuyahoga County Prosecutor’s Office replies that the Ohio Supreme Court’s 2004 decision in State v. Jordan undermines McAlpin’s position. The defendant in Jordan represented himself throughout his trial, including during the penalty phase. After determining the defendant was competent to waive his right to counsel, the Court upheld his convictions and sentence.
In McAlpin’s case, he repeatedly expressed his wish to represent himself, and he signed a written waiver, the prosecutor notes. The office adds that a competency evaluation showed McAlpin displayed no signs of mental illness that would interfere with handling his own defense. McAlpin waived his right to counsel voluntarily, knowingly, and intelligently, the office maintains.
The prosecutor argues that Faretta supports a defendant’s choice whether to decline the assistance of an attorney throughout a criminal proceeding, as long as the defendant is competent to do so. The office also rejects the possibility of a hybrid representation during a trial – with an attorney taking over representation for only the penalty phase. A defendant may be represented by an attorney or proceed pro se with the assistance of standby counsel, but these are independent rights that cannot be made simultaneously, the office concludes.
Offender’s Brief Makes Claims Against Prosecutor’s and Court’s Conduct
Among McAlpin’s other arguments, he asserts that:
- his standby counsel interfered with his request for a report from a DNA expert for his side
- the prosecutor infused the guilt phase of the trial with passion and bias by presenting irrelevant information and stressing the impact of the crimes on the friends and families of the victims
- the prosecutor made improper statements amounting to prosecutorial misconduct
- the trial court prevented him from questioning an FBI agent about cellphone technology and towers
- the court wasn’t neutral in comments made when it recessed the trial to accommodate a doctor’s testimony on a later date and its comments when McAlpin changed his mind about having the doctor testify when the doctor appeared.
State Defends Its Approach and Court’s Handling of Case
The prosecutor counters that:
- the defense’s DNA report would have confirmed the state’s evidence and harmed McAlpin
- the testimony McAlpin contests simply gave background and didn’t change the trial’s outcome
- the prosecutor’s statements were permissible, and the record doesn’t support McAlpin’s claims of misconduct
- McAlpin’s cross-examination of the FBI agent included improper questions, and McAlpin was able to elicit the nuances of cellphone evidence through other questions
- the court did nothing improper in explaining the recess to the jury, and McAlpin didn’t object at the time.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Joseph McAlpin: David Doughten, 216.361.1112
Representing the State of Ohio from the Cuyahoga County Prosecutor’s Office: Jennifer Meyer, 216.443.7800
Does No-Contact Order Establish Justifiable Cause for Not Communicating with Children?
In re Adoption of A.K., Case No. 2020-1163
Eighth District Court of Appeals (Cuyahoga County)
ISSUE: Is a court order precluding a natural parent from communicating with the parent’s children sufficient justifiable cause for not providing minimal contact in the context of adoption proceedings?
BACKGROUND:
The father of two minors identified as A.K. and C.K. was sentenced to 23 years to life in prison for the 2006 murder of the children’s mother. The Summit County Juvenile Court granted permanent custody of A.K. and C.K. to their maternal grandparents in 2007. The juvenile court also ordered the father to have no contact with the minor children without a court order.
In June 2015, the maternal grandparents filed a petition to adopt A.K. and C.K. Adoptions require the consent of a child’s natural parents, unless an exception applies, and a determination whether the adoption is in the child’s best interest.
The Cuyahoga County Probate Court held a hearing to evaluate whether the father’s consent was needed before the adoption could proceed. The father, who is serving his prison term, provided no support for and had no contact with the children for the year preceding the filing of the adoption petition. The magistrate reviewed whether the father had a justifiable cause for not contacting his children and found that the juvenile court’s no-contact order was justifiable cause. The magistrate concluded that the father’s consent was required before the grandparents could adopt the children. In December 2016, though, the probate court judge overturned that decision, determining that the father’s consent wasn’t necessary.
The father appealed to the Eighth District Court of Appeals, which in December 2017 upheld the decision. The Ohio Supreme Court and the U.S. Supreme Court both declined to hear the father’s appeals.
Adoption Process Moves to Best-Interest Phase
The case returned to the probate court for a hearing on whether the adoption was in A.K.’s and C.K.’s best interests. The magistrate ruled in August 2018 that the grandparents’ adoption of the children was in their best interests, and the probate court agreed.
The Eighth District accepted the father’s appeal of the decision. The appeals court reviewed the Ohio Supreme Court’s June 2019 opinion in In re B.I. and, in light of that ruling, determined that the father’s consent now was required for the grandparents to adopt the children.
The grandparents appealed to the Ohio Supreme Court, which accepted the case. Because of the COVID-19 pandemic, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Father Had No Justifiable Cause for Lack of Contact, Grandparents Argue
The grandparents argue in their brief that the existence of a court’s no-contact order can’t be a “blanket justification” for a lack of communication with a child in the year preceding the filing of the adoption petition. They also contend that it is appropriate for a probate court to consider the reasons underlying a no-contact order because probate courts consider the distinct facts of each case when determining whether a parent has justifiable cause for not having at least minimal contact with a child. At the hearing about the consent issue, the probate court examined the terms of the juvenile court’s no-contact order and the circumstances underlying the order, they note.
In determining that the children’s father didn’t have justifiable cause for not communicating with his children in the one-year timeframe, the probate court considered that the father’s own action of murdering his wife – his children’s mother – led to the no-contact order, the grandparents state. They also maintain that the father didn’t reach out to make any indirect effort to stay in contact with his children and he didn’t attempt to have the juvenile court modify the order. They add that the rights and interests of the children take precedence over those of the natural parent in these proceedings.
The Court decision that changed the course of these adoption proceedings – B.I. – stated that, because a court order had relieved the natural father of any child-support obligation, his failure to pay child support didn’t eliminate the statutory requirement to obtain his consent for the adoption of his child, the grandparents note. They argue, though, that the B.I. ruling, which involved an order about financial obligations, can’t be expanded to encompass no-contact orders, such as the one in this case.
They also take issue with the Eighth District’s reconsideration of the consent issue during the father’s appeal of the probate court’s best-interest determination. The consent issue was resolved earlier by the courts, and the appeals court’s application of B.I. to that issue during the best-interest appeal wasn’t proper, the grandparents assert.
No-Contact Order Is Justifiable Cause for Not Communicating with Kids, Father States
The father contends that the rationale of B.I. applies to a parent who is subject to a no-contact order but willing to have contact with a child. He argues that B.I. allows parents to abide by court orders without fear of losing their parental rights.
Acknowledging the tragedy of the crime, the father’s brief states that he has refrained from contact with his children since 2007 only to comply with the juvenile court’s no-contact order. The brief notes that the maternal grandparents are in their 80s and A.K., who is now an adult, and C.K. have special needs that will require care into adulthood. The brief adds that the father has written nearly 200 letters, including birthday cards, to his children that his mother, the children’s paternal grandmother, is keeping for them. His mother regularly visits the children, except during a few years when the maternal grandparents wouldn’t allow visits, the brief indicates. She has kept her son updated over the years about the children’s health, personalities, and activities.
The brief maintains that the children’s father never had reason to think a court would modify the no-contact order, and he instead feared that such an attempt would have been opposed strongly by the maternal grandparents and lead them to terminate his mother’s visits to the children.
Given his lengthy prison sentence, the maternal grandparents’ adoption wouldn’t change C.K.’s current home life or the ability of the grandparents to make decisions and care for the child, the father states. However, he argues, adoption would harm C.K. financially and emotionally because it would legally terminate the rights of anyone in his family to be in C.K.’s life.
The father maintains that permitting probate courts to use the reasons for a court order to defeat a claim of justifiable cause would create uncertainty for parents who follow court orders. Because he has been willing but unable to contact his children, he has shown justifiable cause for his lack of contact and retains his right to consent or not consent to the grandparents’ adoption, the father concludes.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the maternal grandparents of A.K. and C.K.: Michelle McGuire, 440.396.7844
Representing A.K.’s and C.K.’s father: Mary Catherine Barrett, 440.356.4604
Lawyer Challenges Suggested Sanction for Profanity Spewed at Holiday Party, Alcohol Misuse
Columbus Bar Association v. Natalie J. Bahan, Case No. 2021-0224
Logan County
A Logan County lawyer is challenging her second sanction in as many years regarding an ongoing dispute with a retired judge and allegations of improper conduct fueled by alcohol consumption.
The Board of Professional Conduct has recommended that Bellefontaine attorney Natalie Bahan receive a six-month, fully stayed suspension for failing to maintain a respectful attitude toward the courts and engaging in conduct that adversely reflects on her fitness to practice law. The charges include her “loud, profane, and drunken conduct and remarks directed at” now-retired Judge William Goslee during a 2018 Logan County Bar Association holiday party at a local restaurant.
Bahan denies the allegation that she violated the ethics rules governing Ohio attorneys, and maintains her soft-spoken expletives about Goslee are protected by her constitutional freedom of speech rights and that Goslee wasn’t offended by her words because he continued to speak while accepting a “mock” award from the local bar.
The Supreme Court in 2020 publicly reprimanded Bahan for ethical rule violations associated with her attempts to be hired by a woman arrested in a high-profile murder case. Goslee, who retired from the Logan County Common Pleas Court in 2019, was involved in filing the grievance against Bahan that led to the sanction. (See Logan County Lawyer Reprimanded for Seeking to Represent Jailed Woman.) The Columbus Bar Association, which initiated both the prior and current disciplinary complaints, maintains that the board’s findings support a minimum a six-month stayed suspension.
The Supreme Court is obligated to hear objections to board recommendations in attorney discipline cases. Because of the COVID-19 health crisis, the Supreme Court will hear arguments in the case by videoconference, which will be livestreamed.
Party Rant Leads to Ethics Charge
In March 2017, Rosalie Kennedy was arrested and jailed for the murder of her husband. Bahan did not know Kennedy but became interested in the case after learning of the arrest. Bahan went to the local jail to visit Kennedy by telling others she intended to advise Kennedy of her rights, but actually intended to ask the woman to allow her to be part of her defense team. Ethics rules ban lawyers from making in-person contact to solicit employment when the lawyer is significantly motivated by financial gain.
A grievance was filed against Bahan, and a professional conduct board hearing on the matter was approaching when Bahan attended the December 2018 Logan County Bar Association holiday party. Goslee was to receive a mock award from the bar association. During the presentation, Bahan interrupted by calling Goslee several profane names. Party attendees indicated Bahan had consumed alcohol and was intoxicated.
While Bahan claims she said the words quietly, Miranda Warren, president of the county bar association, apologized to the caterer and the restaurant owner on behalf of the bar association because of Bahan’s behavior.
Ethics Rules Violated, Board Concludes
The board concluded Bahan didn’t maintain a respectful attitude toward the courts, a violation of the ethics rules. Bahan she didn’t violate the rule by aiming her remarks at Goslee during the holiday party. She notes in cases where the Supreme Court found violations of the rule, the unprofessional comments made by lawyers regarding judges or other officials happened in court or in the midst of a legal proceeding. She argues that Goslee is not a “court” and that her actions didn’t violate the rule and are also opinions protected by the First Amendment to the U.S. Constitution.
The Columbus Bar Association counters the rule covers remarks made about judges outside of legal proceedings and Bahan never denied making the comments, but only argues she was justified in making them because she thought the bar association was rewarding and encouraging improper judicial behavior. The association also notes the Ohio Supreme Court in past decisions has ruled that constitutional free speech rights can’t shield a lawyer from discipline related to proven unethical conduct.
Unprofessional Behavior Involving Alcohol Use Alleged
The bar association charged Bahan with engaging in conduct that adversely reflects on her fitness to practice law based on the “cumulative” effect of seven alcohol-related incidents occurring between 2010 and 2019. Two of the incidents involved calling the Logan County Sheriff’s Office while allegedly intoxicated.
In one instance, Bahan and her husband had an argument at a 2019 charity benefit. When she couldn’t locate her husband, she assumed he left her. She called the sheriff’s office to report her car was stolen. Bahan notes that she discovered her husband was still at the party and called the sheriff’s department back 10 minutes later to tell them to disregard the call. Nonetheless, sheriff’s deputies visited her home two hours later to check on her well-being. The responding deputy reported that Bahan appeared intoxicated and testified at board proceedings that it wasn’t proper to report a vehicle as stolen when taken by a spouse.
The board also noted a 2017 incident when Bahan contacted the sheriff to report that her teenage son stole her iPad. The responding officers reported the call was mostly to resolve an argument with her husband and reported that she appeared intoxicated and was slurring her speech.
The board concluded the two incidents involving law enforcement constituted “conduct prejudicial to the administration of justice.” The board report cites five other incidents related to alcohol use presented by the bar association, but only considered three of the incidents to cumulatively lead to conduct adversely effecting her fitness to practice law.
No Proof Alcohol Misuse Led to Ethics Violations, Lawyer Argues
Bahan maintains the board hasn’t proven any alcohol-related misconduct. The board report found that she was twice evaluated by the Ohio Lawyers Assistance Program (OLAP), which didn’t result in determinations that Bahan had an alcohol problem or recommend that she enter into a contract with OLAP for treatment She suggests the board’s charges be dismissed.
The bar association disputes the board’s finding about OLAP’s alcohol assessments, arguing that the proceedings indicated the OLAP determinations were based on Bahan’s self-reports of the interactions and that full OLAP evaluations never took place. The bar association urges the Court to review the board proceedings and conclude that Bahan should at least receive a stayed suspension, if not a more severe sanction.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Columbus Bar Association: Kent Marcus, 614.340.2053
Representing Natalie J. Bahan: Tim Steinhelfer, 937.900.0025