YOUNGSTOWN – A dispute between Mahoning County District Attorney Paul Gains and attorney Martin Desmond, who challenged Gains for his work in 2020, peaked on October 27.
That’s when an appeals court panel sitting by subpoena from the Ohio Supreme Court hears arguments in Toledo over whether Desmond’s communications with his attorneys are a fair game for him. inspection by Gains.
The DA’s office wants to know the basis for Desmond’s allegations that some employees in the office engaged in criminal behavior. Gains’ attorneys also want information on Desmond’s communications with the FBI.
Desmond from Poland, filed a lawsuit in the Mahoning County Common Plea Court against Gains, his former boss, in March 2018. The lawsuit alleged that Gains had wrongly fired him. Gains disputes this.
In March, the trial hit a roadblock before visiting Judge HF Underlied Jr. when Underlied ruled that Desmond should hand over a list of cases Desmond discussed during a trial deposition, and Desmond did appeal of this decision. A ruling that two lawyers for Desmond are to give depositions in the case is also under appeal. Underlied is a retired Geauga County Court of Common Pleas Judge.
All other trial hearings are suspended while the issues on appeal are heard. Three judges from the Toledo 6th District Court of Appeal are assigned to the case.
Desmond’s lawsuit against Gains also names Gains’ deputy chief prosecutor Lynette Stratford as a defendant.
The lawsuit claims that Desmond’s firing as deputy prosecutor was unfair punishment for alleging to Gains that former deputy prosecutor Dawn Cantalamessa misconducted an accused named Kalilo Robinson. Cantalamessa has since resigned from the prosecutor’s office and been hired by the Ashtabula country’s prosecutor’s office.
His resignation followed Judge John Durkin of the Mahoning County Common Plea Court in July to remove Cantalamessa from a murder case over what Durkin called “reckless indifference to the search for the truth “and misrepresentation in court.
Desmond sued the DA’s office for his dismissal on March 21, 2018, leading to Desmond’s impeachment, which meant Gains’ attorneys questioned Desmond with his attorneys in front of a stenographer.
During the deposition, Desmond’s attorneys objected when attorneys for Gains asked Desmond for a list of approximately 24 criminal cases in which Desmond alleged the prosecutor’s office potentially committed misconduct or illegal activity. Desmond’s attorneys argued that the documents were protected as a “work product” between Desmond and his attorneys and did not have to be revealed.
The work product consists of writings, notes and reports of conversations between a lawyer and his client.
Gains’ attorneys issued subpoenas in January against Desmond’s attorney, Subodh Chandra, and Desmond’s former attorney, Sandhy Gupta, to search for information and documents on Desmond’s contacts with the FBI regarding allegations of misconduct within the prosecutor’s office.
But a record from Desmond says case law “sets the bar high for subpoenaing a lawyer for testimony, requiring the information to be ‘crucial’ to the preparation of the case.” The record indicates that lawyers for Gains have failed to show that the information is crucial.
Desmond’s attorneys also argue that the information Gains sought is communications between Desmond and his attorneys after Desmond was fired – and therefore unrelated to the case.
Underlying Gains’ approved depositions requests and list of cases on March 1, 2021.
A Gains file in the appeal indicates that Gains’ attorneys want information regarding Desmond’s communications with the FBI, “including a meeting with Desmond’s longtime friend, FBI Special Agent Wallace Sines.” . The purpose of the meeting with Sines was to “call for an investigation into District Attorney Gains, Chief Assistant Stratford, (Deputy District Attorney) Cantalamessa and / or Former (Deputy District Attorney Shawn) Burns”, indicates the file of Gains.
During the deposition, when Desmond was questioned about his communications with the FBI, Desmond said he told Sines “to contact his lawyer directly to obtain the information and documents,” Gains’ case reads.
Desmond also said he and his lawyers created a list of 20 to 24 legal cases in which alleged constitutional violations took place, according to Gains’ filing. Chandra advised Desmond during the deposition not to discuss “specific questions about what may be on the list” which is protected by solicitor-client privilege, the Gains file says.
The prosecutor’s office “is rightly seeking to uncover the basis for (Desmond’s) allegations that (certain employees of the prosecutor’s office) engaged in criminal behavior,” Gains’ file states.
Lawyers for Gains also argue that the appeals court lacks jurisdiction to hear many of the issues raised in the appeal because the orders issued by Underlied regarding the documents are not final and appealable. The appeals court also lacks jurisdiction over issues related to work-product privilege, says a filing by Gains.