Judge nixes questioning of Lucas Co. prosecutor over death penalty

Anthony Belton, 24, is scheduled to face trial Aug. 2 on charges of aggravated murder and aggravated robbery in the 2008 shooting death of a store clerk.

Anthony Belton's defense attorneys will not have the opportunity to question the Lucas County prosecutor about how her office determines which defendants face the death penalty, a judge ruled Thursday.

The decision means there would not be enough evidence to support a motion filed by the defense asking to dismiss the death-penalty specifications attached to Mr. Belton's charges. He is charged in the 2008 shooting death of a BP convenience store clerk during an apparent robbery and is scheduled to go to trial Aug. 2 on charges of aggravated murder and aggravated robbery, both with gun specifications.

Yesterday, Judge Ruth Ann Franks said that higher courts already had established the requirements necessary to support a selective prosecution claim. In particular, she said the defense would have to show that other defendants "similarly situated" to Mr. Belton did not face the death-penalty specifications and prove that the prosecutor's decision was made in bad faith.

"The court finds that this defendant clearly has not met the standard to warrant a discovery hearing," she said, adding the statistics presented by the defense do not meet the necessary standard.

Mr. Belton 24, of 934 Cuthbert Rd. is accused of shooting Matthew Dugan once in the back of the head during an Aug. 13, 2008, robbery at the former BP gas station at Dorr Street and Secor Road. Police said the suspect entered the convenience store about 7 a.m., approached the counter, pulled out a gun, and demanded money.

The gunman shot Mr. Dugan, 34, after the clerk turned around in response to an order to retrieve telephone cards from behind the counter, authorities said.

Attorney Pete Rost had argued during a June 7 hearing that a review of public records showed that only 26 of the 66 cases that could have been prosecuted as death-penalty cases in the past 13 years led to capital indictments. He said that left 40 cases in which felony murder specifications existed but the prosecutor's office did not pursue the death penalty.

Yesterday, he further argued that the only way to determine whether capital decisions were made arbitrarily was to ask. He said after the hearing that he was disappointed in the court's decision not to allow an evidentiary hearing that would give the defense an opportunity "to provide additional information for the court's consideration."

"We are attempting to show that the indictment of capital cases in Lucas County seems to be arbitrary," he said. "We don't know because we don't know the policies and procedures used by the Lucas County prosecutor's office, and the court's ruling today doesn't give us an opportunity to review that."

In response to the defense's request to question a representative of the prosecutor's office, Dean Mandros, chief of the office's criminal division, argued in court that the statistics presented were not enough to warrant a hearing and showed that the defense "plainly came up short."

"The court's ruling was clearly correct as the defendant failed to offer any evidence whatsoever as to any impropriety on the part of the Lucas County prosecutor's office," he said after the hearing.

Mr. Mandros has explained the prosecutor's office makes its decisions on whether to seek the death penalty based on the evidence in the case as well as whether the defendant is the "worst type of offender" and if the scenario is the "worst type of the offense."

In Ohio, if a defendant is found guilty of aggravated murder with death-penalty specifications, a second phase of the trial is held.

During the sentencing phase, the defense is able to present mitigating factors.

If the circumstances of the crime - specifically, those that make it a death-penalty case - outweigh the mitigating factors, a defendant may be sentenced to death.

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.