YOUNGSTOWN — A dispute between Mahoning County Prosecutor Paul Gains and attorney Martin Desmond, who challenged Gains for his job in 2020, comes to a head Oct. 27.
That’s when an appellate court panel sitting by assignment from the Ohio Supreme Court hears arguments in Toledo on whether Desmond’s communications with his lawyers are fair game for inspection by Gains.
The prosecutor’s office wants to know the basis for Desmond’s allegations that some employees in the office engaged in criminal conduct. Gains’ lawyers also want information regarding Desmond’s communications with the FBI.
Desmond of Poland, filed suit in Mahoning County Common Pleas Court against Gains, his former boss, in March 2018. The suit alleged Gains wrongfully terminated him. Gains disputes that.
In March, the suit hit a roadblock before visiting Judge H.F. Underlied Jr. when Underlied ruled Desmond must turn over a list of cases Desmond discussed during a deposition in the lawsuit, and Desmond appealed that ruling. Also being appealed is a ruling that two attorneys for Desmond must give depositions in the case. Underlied is a retired Geauga County Common Pleas Court judge.
All further hearings in the lawsuit are halted while the issues under appeal are heard. Three judges from the 6th District Court of Appeals in Toledo are assigned to the case.
Desmond’s lawsuit against Gains also names Gains’ chief assistant prosecutor, Lynette Stratford, as a defendant.
The suit claims Desmond’s termination as an assistant prosecutor was unjust punishment for alleging to Gains that former fellow assistant prosecutor Dawn Cantalamessa engaged in misconduct regarding a defendant named Kalilo Robinson. Cantalamessa has since resigned from the prosecutor’s office and was hired by the Ashtabula Country Prosecutor’s Office.
Her resignation followed the decision by Judge John Durkin of Mahoning County Common Pleas Court in July removing Cantalamessa from a murder case because of what Durkin called “careless indifference to ascertaining the truth” and making a false statement to the court.
Desmond sued the prosecutor’s office over his termination March 21, 2018, leading to Desmond being deposed, meaning Gains’ lawyers questioned Desmond with his attorneys present in front of a stenographer.
During the deposition, Desmond’s lawyers objected when lawyers for Gains asked Desmond for a list of about 24 criminal cases in which Desmond alleged the prosecutor’s office had potentially engaged in misconduct or illegal activity. Desmond’s lawyers argued that the documents were protected as “work product” among Desmond and his lawyers and did not have to be revealed.
Work product is the writings, memoranda and reports on conversations between a lawyer and client.
Gains’ lawyers issued subpoenas in January to Desmond lawyer Subodh Chandra and former Desmond lawyer Sandhy Gupta seeking information and documents about Desmond’s contact with the FBI as they relate to alleged misconduct in the prosecutor’s office.
But a Desmond filing states that case law “sets a high bar for subpoenaing counsel for deposition, requiring that information be ‘crucial’ to the preparation of the case.” The filing states that Gains’ lawyers have failed to show that the information is crucial.
Desmond’s lawyers also argue the information Gains seeks are communications among Desmond and his attorneys after Desmond was terminated — and therefore not relevant to the case.
Underlied approved Gains’ requests for depositions and the list of cases March 1, 2021.
A Gains filing in the appeal states that Gains’ lawyers want information regarding Desmond’s communications with the FBI, “including a meeting with Desmond’s longtime friend, special agent Wallace Sines of the FBI.” The purpose of the meeting with Sines was to “request that an investigation be opened on Prosecutor Gains, Chief Assistant Stratford, (Assistant Prosecutor) Cantalamessa and/or former (Assistant Prosecutor Shawn) Burns,” the Gains filing states.
During the deposition, when Desmond was asked about his communications with the FBI, Desmond said he told Sines “to communicate directly with his counsel to obtain the information and documents,” the Gains filing states.
Desmond also said he and his attorneys created a list of 20 to 24 legal cases in which alleged constitutional violations took place, the Gains filing states. Chandra advised Desmond during the deposition not to discuss “specific questions about what may be on the list” that is protected by attorney-client privilege, the Gains filing states.
The prosecutor’s office “properly seeks to discover the basis for (Desmond’s) allegations that (some employees in the prosecutor’s office) engaged in criminal conduct,” the Gains filing states.
Gains’ lawyers are also arguing that the appeals court does not have jurisdiction to hear many of the issues raised in the appeal because the orders Underlied issued regarding documents are not final, appealable orders. The appeals court also does not have jurisdiction over issues related to work-product privilege, a Gains filing states.