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Appeals court rejects Mahoning County Prosecuting Attorney Paul Gains’s gambit to learn about a federal criminal investigation of his office

Wednesday, January 26, 2022

Court describes Gains’s requests for evidence as “carelessly worded” and notes Gains failed to provide the court with evidence he claimed existed.

Appeals court rejects Mahoning County Prosecuting Attorney Paul Gains’s gambit to learn about a federal criminal investigation of his office
Martin Desmond

Mahoning County, OH – Today, Ohio’s Seventh District Court of Appeals (sitting on assignment from the Sixth District) roundly rejected Mahoning County Prosecuting Attorney Paul Gains and his co-defendants’ efforts to obtain attorney-client privileged and confidential information about a federal criminal investigation into Gains’s office.

The unanimous opinion represents another crucial victory for former Mahoning County assistant prosecutor Martin Desmond, as he continues to pursue a whistleblower appeal and a related civil lawsuit stemming from his 2017 firing by Gains.

In 2019, Desmond prevailed on another Seventh District appeal—that one arising from his whistleblower appeal before the State Personnel Board of Review (SPBR). The SPBR had initially dismissed the matter on procedural grounds. But, in another unanimous opinion, the Seventh District reversed the dismissal. The court held that because Desmond had written Gains a memo alleging illegal conduct by then Assistant Prosecuting Attorney Dawn Cantalamessa, Desmond was entitled to proceed with his whistleblower appeal.

Desmond’s January 27, 2017 memorandum to Gains reported that Cantalamessa had committed prosecutorial misconduct. On April 5, 2017, Gains fired Desmond. Cantalamessa remained with the prosecutor’s office until August 2021, when she resigned after a judge disqualified her from a murder prosecution for making false statements to the court and failing to turn over evidence. The court held that Cantalamessa had shown a “careless indifference to ascertaining the truth.”

The latest Seventh District appeal stems from Desmond’s Mahoning County Court of Common Pleas civil lawsuit against Gains, his chief assistant Linette Stratford, and Mahoning County. In that case, Gains and his co‑defendants sought access to communications between Desmond and his attorneys about an FBI investigation into the Mahoning County Prosecutor’s Office. Defendants specifically sought:

  • to re-open Desmond’s deposition to question him about discussions with his attorneys; and

  • a list of problematic Mahoning County criminal cases that Desmond prepared with his attorneys.

Although the trial court ruled in Gains’s favor, on appeal, the Seventh District reversed, holding that this information is attorney-client privileged, attorney work product, confidential, and protected from disclosure to Gains and his cronies.

During his deposition, Desmond answered the defendants’ questions about cases where the prosecutor’s office had committed constitutional violations and about what he had discussed with the FBI. Opinion at ¶ 23–24. The defendants had sought to re-open Desmond’s deposition on the premise that Desmond refused to answer questions, but the court observed that, based on the transcript, “this is simply not the case.” Id. at ¶ 39.

In its analysis, the court scrutinized a series of factual assertions Gains and his co-defendants made about Desmond’s deposition testimony. It determined that the deposition transcript did not support those assertions. See id. at ¶¶ 41–43.

The appeals court also held that Desmond need not provide to Gains and his co-defendants a list of constitutionally suspect criminal cases handled by the Prosecutor’s Office that he created with his attorneys. The court explained that Gains and the other defendants had failed to properly request the list, describing their request as “carelessly worded.” Id. at ¶ 27–28, 33. They requested lists of cases “furnished to the [FBI],” even though Desmond had already confirmed that the case list had not been given to the FBI. Id. at ¶ 25, 27–28. Desmond and his counsel had provided the FBI with other information that the FBI requested for its investigation of Gains’s office, but not the list. The court also observed about Gains’s failure to be forthcoming with the court, “[n]otably, [the defendants] did not attach to their motion excerpts of Desmond’s deposition where he made clear that he did not furnish the case list to the FBI.” Id. at ¶ 27.

The appeals court’s opinion also put a halt to the defendants’ unusual effort to depose Desmond’s attorneys. Within its analysis, the court reasoned that what the defendants sought—information about Desmond’s attorneys’ communications with the FBI—was irrelevant to the civil case. Id. at ¶¶ 54–55.

The decision marks yet another victory for Desmond in his effort to seek justice for his wrongful termination and the events surrounding it. It also reinforces the vital protections afforded by attorney-client privilege, which offers a needed space for clients and their attorneys to engage in full and frank communications without fear of intrusion by adverse parties.

Desmond’s whistleblower appeal before the State Personnel Board of Review remains pending. The hearing was continued in October 2021 shortly after Gains confessed for the first time that his decision to fire Desmond was partly motivated by Desmond reporting potential criminal activity involving the prosecutor’s office to a special prosecutor.

A special agent of the FBI attended and observed the proceedings.

The SPBR hearing in Columbus resumes on March 23, 2022.

Subodh Chandra and Patrick Haney represent Desmond.

Related Practice Areas
Constitutional lawDefamation (libel and slander)Employment retaliationFirst AmendmentCrime victims: civil action for damages for criminal acts under Ohio Revised Code § 2307.60
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