First of five parts

With John Caniglia

Bill Mason has repeatedly neglected his No. 1 duty as prosecutor: seek justice for the people of Cuyahoga County.

A nine-month investigation by The Plain Dealer has revealed Mason's office has pursued criminal charges against hundreds of people over the past decade despite having little or no evidence against them.

Almost anyone arrested in Cuyahoga County can be indicted, jailed and taken to trial whether guilty or not because Mason runs the prosecutor’s office like a factory, the newspaper found.

Prosecutors pump out hundreds of cases for trial every year without always considering their flaws, the newspaper has learned.

That flies in the face of what a prosecutor is elected to do.

Unlike a defense attorney — whose sole job is to serve a client’s interests — a prosecutor has a broad responsibility to seek justice for crime victims, the community and defendants.

Because Mason’s office does not always fulfill that duty, some Common Pleas judges say they are left to sort out the mess.

Almost 7,000 cases over 10 years

A Plain Dealer analysis of court records from the past 10 years revealed that in the 6,891 trials between 2000 and 2009, Cuyahoga County Common Pleas judges acquitted 364 defendants in midtrial, usually without waiting for the defense to present its case.

That means one out of every 19 people who went to trial on felony charges walked away free because prosecutors didn’t present the most basic evidence.

Rule 29 explained

Ohio judges have the power to dismiss charges in criminal cases if they determine insufficient evidence was presented at trial to support a conviction. The authority comes from Rule 29 of the Ohio Rules of Criminal Procedure. Judges must view the evidence in the light most favorable to prosecutors when considering whether to grant a Rule 29 acquittal. The ruling cannot be appealed.

Judges relied on Rule 29 of the Ohio Rules of Criminal Procedure to throw out the cases. The provision allows judges to acquit if they believe the evidence, even when viewed in a light most favorable to prosecutors, is insufficient to convict.

Mason — who built his political career as a pro-death penalty, law-and-order Democrat — makes no apologies.

“I see myself as someone holding people accountable for their actions,” Mason said.

Mason said that when he took office in 1999, too many low-level felonies ended in plea bargains. Assistant prosecutors — often young, inexperienced attorneys — had far-reaching authority to wheel and deal, choosing which cases they pushed to trial.

Mason changed the way the office worked. Among other things, he stripped assistant prosecutors of much of their discretion and turned responsibility over to a handful of supervisors. He then told the supervisors more cases should go to trial.

The goal, Mason said, is to bring a fair and systematic approach to the prosecutor’s office. Not every case is a slam-dunk, but that doesn’t mean prosecutors shouldn’t take those cases to trial, Mason said.

“Even though a case looks like it may be crumbling ... we have a victim out there that says, ‘I’ve been raped,’ ” Mason said. “We try [these cases in court], we have good results, and I think [victims] deserve that.”

Judgments of acquittal make up only a tiny fraction of the 160,000-plus indictments his office has handled since 2000, Mason said.

Prosecutors may have won those cases, too, if different judges would have heard the same evidence, he said, pointing to a wide disparity in the judges’ use of Rule 29. Once a judge grants a judgment of acquittal, the case is over — and no appeal is permitted.

Mason said that, ultimately, he should be judged by his office’s overall conviction rate — about 92 percent, which includes plea bargains. The prosecutor’s conviction rate drops to about 63 percent for cases that made it to trial in the past 10 years, according to court records.

Sometimes witnesses change stories or skip town, undermining the prosecution’s case. But in many cases that ended with judgments of acquittal, prosecutors never had enough evidence to make a case from the start, the newspaper discovered.

15 felony cases get extra scrutiny

Presumed Guilty: Prosecutions without evidence

A Plain Dealer special report

Part 2: Cuyahoga County judges vary widely in throwing out cases for lack of evidence

Plain Dealer reporters spent more than eight hours with Mason and his chief deputies reviewing details of 15 particularly flimsy felony cases thrown out by judges in midtrial since 2000.

They include:

A man prosecuted for robbing a Brooklyn store even though he didn’t take anything.

A woman prosecuted for stealing her own car after it disappeared in the Flats and turned up about 50 miles away with a license plate belonging to a Trumbull County man.

A man prosecuted for drug dealing even though police conceded they had no evidence of wrongdoing and never found drugs on him or in his house.

Prosecutors stand by each case, asserting that they would pursue convictions the same way even if they had each to do over again.

Some of Mason’s critics say that reflects what they call the prosecutor’s hypocrisy and arrogance: How could Mason push thousands of routine criminal cases through the court system while apparently overlooking widespread corruption among his friends and political allies over the past decade?

A growing chorus of defense attorneys, former prosecutors and judges has complained privately for years about what they see as unsettling changes in the way the prosecutor’s office works since Mason took over.

Many critics have been afraid to speak openly about their concerns for fear Mason — the most powerful Democrat left standing in the wake of the county corruption investigation — could retaliate, hurting both their professional and political futures.

But a federal judge gave voice to some of their concerns this year in a ruling that blocked Mason from prosecuting a case.

U.S. District Judge Kate O’Malley wrote that Mason’s office showed a “startling indifference” to the defendant’s rights and then bluntly reminded Mason about his duty as prosecutor by quoting U.S. Attorney General Eric Holder:

“It’s the easiest thing in the world for people trained in the adversarial ethic to think a prosecutor’s job is simply to win.”

But it’s not, O’Malley wrote: A prosecutor’s job is to seek justice.

And too often, the newspaper has discovered, that hasn’t happened in Cuyahoga County.

Is it stealing if you put it back?

Kirby Waddell drew the unwanted attention of security at Super Kmart in Brooklyn in October 2006 when he slipped more than a dozen bottles of Visine, Tylenol and Pepto-Bismol into his shopping cart.

Guards watched the 56-year-old Cleveland man sneak some of the items from his cart into his coat.

But the guards apparently missed what happened next.

Waddell had a change of heart. He returned all of the merchandise to store shelves and left.

Outside the store, a guard tried to stop Waddell for shoplifting, but Waddell struggled with the guard, saying he had done nothing wrong.

The guard didn’t believe him, however, and several more jumped in and dragged Waddell to a back room in the Super Kmart, where they discovered Waddell was telling the truth: He hadn’t stolen a thing.

“They should have patted [Waddell] on the back, apologized, given him a cup of coffee and said, ‘Good day, sir,’ ” Waddell’s lawyer, James Jenkins, said.

But Waddell, like scores of others in Cuyahoga County, was about to fall into a broken system of justice.

Brooklyn police arrested Waddell at the store that day and took him to jail, where he spent about three days before posting bond. Prosecutors then persuaded a grand jury to indict Waddell on a felony charge of robbery, which could have sent him to prison for up to eight years.

An assistant county prosecutor hung the case on a little-known legal issue called asportation — moving merchandise from one place to another with the intention to steal. In Waddell's case, prosecutors argued that he robbed the store when he moved the items from one place to another and left the store without notifying employees of what he had done.

When the prosecutor was finished presenting his case, Common Pleas Judge William Coyne stepped in and saved Waddell.

“How this case ever got this far is beyond me. I have no idea,” Coyne said from the bench. “This case should never have been brought down here.”

Waddell — who has had no known run-ins with the law since — was free to go.

Critics say Mason lets 'dogs' run

Conviction rates can be misleading

Cuyahoga County Prosecutor Bill Mason boasts a 92 percent conviction rate.

In interviews with Mason and his top deputies, they played up the figure as a way of showing that the office does a good job holding people accountable for their actions.

The prosecutor’s office, like many others across the country, figures its conviction rate based on guilty verdicts and plea deals. Some critics say that approach is misleading.

Take a defendant indicted on multiple charges, such as attempted murder, felonious assault and kidnapping. A conviction on those charges could mean years in prison. If that defendant takes a deal, however, and pleads guilty to a misdemeanor assault charge, prosecutors can count that as a conviction.

The misdemeanor carries six months in jail and a fine. Oftentimes, prosecutors are not happy with the misdemeanor, but the guilty plea counts as a conviction.

John Murphy, the executive director of the Ohio Prosecuting Attorneys Association, said he is not aware of any hard-and-fast rules on the way to count convictions.

In Cuyahoga County, guilty pleas make up about 88 percent of the convictions. In the past 10 years, prosecutors gained convictions in about 63 percent of the cases that went to trial.

Similar scenarios have played out about three times a month in Cuyahoga County courtrooms.

“There’s a much greater willingness in the past 10 years to bring bad cases,” said defense attorney Jeffrey Saffold, who served as assistant prosecutor for three years under Mason’s predecessor, Stephanie Tubbs Jones.

“This is rampant,” Saffold said.

Lawyers have a name for criminal cases with little or no evidence to secure a conviction — dogs.

Measuring how many dogs make it to trial in Cuyahoga County isn’t easy.

Many defendants — particularly those with criminal histories — often plead guilty to lesser charges.

Other defendants go to trial before judges who rarely rule prosecutors have too little evidence to sustain a conviction. It’s impossible to know how many of those cases are dogs.

A quantifiable measure of bad cases are judgments of acquittal — or Rule 29 cases, as they’re often referred to by lawyers.

Even if you’ve never sat on a jury, you’re probably familiar with the concept of Rule 29 from TV dramas like “Law & Order.” Televisions writers refer to the issue as directed verdicts.

They work like this: After the prosecution has presented its case at trial, a defense lawyer stands and makes a Rule 29 motion, asking the judge to throw out the case because prosecutors haven’t presented sufficient evidence.

If the judge concurs, the defendant is acquitted.

Difficult to compare rulings across jurisdictions

The Plain Dealer initially hoped to compare the number of Rule 29 cases during Mason’s tenure with those of Tubbs Jones’. But Cuyahoga County’s court system lacks accurate numbers before 2000.

The newspaper next tried to compare Cuyahoga County’s rate of Rule 29 cases with some of Ohio’s 87 other counties. Only one large county — Lucas County, home of Toledo — tracks Rule 29 cases. There, judges issue directed verdicts of acquittal in about one in every 27 trials.

Cuyahoga County’s court system, however, dwarfs Lucas County’s. The criminal section of Cuyahoga County Common Pleas Court has 34 judges. Lucas County’s has 10. And Cuyahoga County handles about 10 times as many criminal trials each year as Lucas.

So the newspaper then looked beyond Ohio to New Orleans; Miami; Indianapolis; Pittsburgh; Portland, Ore.; and other metropolitan areas with similar prosecution caseloads.

Only one — Pittsburgh’s home, Allegheny County — tracked that state’s version of Rule 29 cases, and it had records covering only four years, 2006 through 2009.

During that time, there were about 3,100 trials in Allegheny County, 69 ending in directed verdicts of acquittal. That means judges there threw out about one in every 45 cases.

During the same four years in Cuyahoga County, there were about 3,400 trials, 164 ending in directed acquittals. So judges here threw out about one in every 21 cases, more than twice the rate of judges in Allegheny County.

Mason said his office tried to find statistics from other prosecutors after learning The Plain Dealer was writing a story but couldn’t find any comparisons.

Regardless, Mason and his deputies downplayed the number of Rule 29 cases in Cuyahoga County.

Court records show that judges used Rule 29 to toss out cases in 364 of 6,891 trials over the past 10 years. In nearly all of those cases, judges acquitted the defendant of all charges. A few cases involved a mix of Rule 29s and not guilty verdicts.

Prosecutors said those Rule 29 cases make up less than one quarter of 1 percent of the more than 150,000 indictments since 2000. And in most of those, including Waddell’s, judges erred when granting a judgment of acquittal, prosecutors argued.

Mason pointed to Waddell’s 42-page rap sheet and 42 aliases when he was arrested at Super Kmart. That told prosecutors Waddell had a long history of deceiving people and went to the store that day to thieve, Mason said.

“There is no reason to give [Waddell] the benefit of the doubt when all he has been doing is stealing things his whole life,” Mason said. “Another person, who has not been a thief his whole life, under the same set of facts, might have got the benefit of the doubt.”

But not Jessica Higgins.

The former Aurora woman had no criminal history when prosecutors dragged her in front of a judge in 2007 and tried to convict her of stealing her own car.

Was a car stolen -- or dumped?

Trouble began for Higgins after she bought a 2004 Impala from Serpentini Chevrolet, where she worked as a saleswoman.

In July 2005, Higgins drove the car to Cleveland, parked at Elm Street and Washington Avenue in the Flats and spent the night at a friend's.

When Higgins returned to pick up her car the next morning, it was gone. She immediately called 9-1-1 and reported it stolen. She then called her insurance company, Progressive, and filed a claim.

Two months later and about 50 miles away, Warren police found Higgins’ car abandoned on a side street.

No records show that police in Cleveland or Warren were pursuing a suspect. But officials at Progressive — which had paid off a $13,275 loan Higgins owed on the car — soon asked Cuyahoga County prosecutors to charge Higgins with stealing her own car.

Prosecutors believed Higgins was in money trouble and arranged for her car to be stolen, based largely on testimony of a locksmith hired by Progressive. The locksmith said the car’s locks hadn’t been tampered with, suggesting someone had used a key to take it.

A prosecutor presented the case to a grand jury in July 2006. He called only one witness — a Progressive investigator who testified there was no evidence someone tried to break into Higgins’ car and implied that Higgins herself was behind the theft since she was the only one with access to the keys.

What the grand jury was never told, however, was that one of the car’s windows was smashed when Warren police found it, and the license plate of a Trumbull County man was in the car.

The grand jury indicted Higgins, accusing her of insurance fraud, theft and falsification.

Higgins' case went to trial in March 2007 before the same judge who handled Waddell’s robbery case — Judge William Coyne, who has since retired but hears cases on assignment.

Coyne stopped Higgins’ case midtrial and pointed out that prosecutors provided no witnesses who could testify Higgins was involved in the car theft, no fingerprints or other evidence to show Higgins was involved in the disappearance of her car.

The judge said that it was “somewhat of a scary thought” to think about others who reported cars stolen in Cleveland and that they could face baseless felony charges, too.

Assistant County Prosecutor Brent Kirvel tried to persuade the judge to let the trial proceed.

“The grand jury believed there was enough [evidence] to go forward,” Kirvel told the judge.

But Coyne discounted the grand jury.

“My God, you can indict ... ” the judge started to say before Kirvel interrupted and finished the judge’s sentence:

“You can indict a hamburger, I know.”

Coyne then stepped in and saved Higgins, acquitting her of the charges.

Even with hindsight, prosecutors insist the criminal charges against Higgins were justified. So who is to blame when Higgins’ and other cases end with a Rule 29?

Cases can be cut short at many levels

Prosecutors, judges and defense attorneys often disagree over that, saying there are flaws in every level of the justice system that can send an innocent person to prison.

The first level is police. In high-crime areas, front-line officers are nearly overwhelmed, and police send prosecutors reports that are sometimes incomplete, inaccurate and full of theories without evidence to back them up.

Grand juries, independent bodies of citizens, are supposed to act as a watchdog over prosecutors. But some experts — including law professors, defense attorneys and former prosecutors — say Ohio's grand juries often act more like rubber stamps. Jurors, they say, are rushed and often not given enough information to fairly assess cases.

Prosecutors should filter out the baseless cases, but many critics say they don’t. Mason defends his office, saying that each year it rejects 600 to 750 feeble cases submitted by local law enforcement. Grand juries refuse to indict in about 400 more, he said.

One of the problems, Mason said, is with judges who sometimes misinterpret the law or overstep their authority when granting a Rule 29.

Nearly half the directed acquittals came from only a handful of Cuyahoga County's Common Pleas judges, Mason said. Court records show a half dozen of those judges granted nearly 40 percent of the Rule 29 motions over the past 10 years.

Judges, Mason said, are like baseball umpires. They have an enormous amount of discretion. A pitch that is a strike to one umpire is a ball to another.

Most judges agree with Mason’s assessment.

“The difference in numbers from judge to judge is because of the way they view things, the way they view the application of the law and the facts, as well as their experience and training,” said Judge John Sutula, who has dismissed 16 cases in 262 trials, or a rate of one in 16.

But some judges say that doesn’t explain why they’re granting so many Rule 29s.

They argue Mason’s prosecutors too often pursue dog cases that defy not only the spirit of the law, also but common sense.

Judge Eileen A. Gallagher has dismissed 33 cases in 192 trials, or a rate of one in six.

She defended her own record and blamed prosecutors, saying, “They bring crummy cases.”

No drugs in the house -- but he had a $20 bill

Many of the worst involve the weakest among us — the poor, the unfortunate or those with criminal pasts.

Renaldo Payne was among the weakest.

The 55-year-old Cleveland man spent much of his life in trouble, indicted for a half-dozen felonies in the 1970s and 1980s. That criminal chapter of his life ended in 1991, Payne said.

He steered clear of police for 17 years. Then in 2008, he let a friend’s son move in with him, hoping to help the younger man turn his own life around after he was released from prison.

A couple of months later, police raided Payne’s house on West 140th Street near Lorain Avenue.

Vice officers, it turned out, had been watching the man Payne was trying to help. The man was dealing drugs from a parking lot across the street from Payne’s house.

Police found no drugs on Payne or anywhere in his house. But officers did find a $20 bill shoved into Payne’s pocket that a police informant had used to buy drugs.

That crumpled $20 was enough to get Payne arrested.

A grand jury indicted Payne on charges of drug trafficking and drug possession, which could have sent Payne back to prison for about two years.

Prosecutors theorized that Payne provided a haven for the man to sell drugs. The evidence they cited was the $20 bill and something police said Payne told the man during the raid: Payne scolded the man he was trying to help, reminding him that he wasn’t allowed to deal drugs at the house.

If Payne were innocent, prosecutors said, he would have told the man he wasn’t allowed to deal drugs, period.

The case fell apart at trial after Judge Joan Synenberg asked prosecutors whether they had any evidence to show Payne was involved in drug transactions.

They did not.

Synenberg saved Payne, granting a Rule 29 and setting him free.

Why would prosecutors pursue such a case? Because, Mason said, when prosecutors and defense attorneys can’t agree on the “gray areas” of a case, prosecutors sometimes send the cases to trial so that judges or juries can decide.

The youngest, least experienced assistant prosecutors often end up with the dogs. A couple of former prosecutors who spoke on the condition that their names not be used said the reason is twofold — cub prosecutors gain needed courtroom experience, and up-and-comers rarely challenge their supervisors even if they would prefer to drop the charges.

There may be political reasons, too.

Some political observers lay out this scenario: If prosecutors pursue charges against someone and a judge throws out the case, Mason has inoculated himself from political blowback should the accused go on to get mixed up in some sensational crime.

Voters, they said, would probably blame the judge who threw out the case instead.

It’s shrewd politics, Mason’s critics said, but it’s also perverse justice.

Mason’s top deputies said the idea that they pass the buck to judges is ludicrous. Prosecutors have neither the time nor the inclination to consider politics when deciding which of the hundreds of cases they review each week should go to trial, they said.

Payne said he doesn’t know why his case reached trial, but the experience changed him.

For nearly two decades, Payne thought he had left prison life behind.

Now he’s not so sure.

Payne said he’s haunted by what could have happened if prosecutors had won: “I could have gone to prison for something I didn’t do.”

Part 2: Cuyahoga County judges differ widely in throwing out cases for lack of evidence

To reach these Plain Dealer reporters: jcaniglia@plaind.com, 216-999-4097 | agarrett@plaind.com, 216-999-4814