Improper conduct: how undisclosed evidence can put Ohioans behind bars

Michael Buehner served 12 years of an 18-to-life prison sentence for murder before finding evidence that would support his innocence claim — evidence that Cuyahoga County prosecutors in Ohio withheld from him and his attorneys.

He lost two appeals and was starting to lose hope when, one day, a friend visited him in prison, armed with a stack of police reports.

“‘You still have hope,’” he remembers his friend telling him. “’You didn’t do this.’”

The reports, obtained by Buehner’s friend through a public records request, detailed eyewitness accounts suggesting a Black man — not a white man, like Buehner — had shot a drug dealer. Buehner’s attorneys had asked prosecutors to share evidence like this several times before his trial. They never did.

The discovery spurred a pair of appeals that ended in a 2021 ruling against the Cuyahoga County prosecutor’s office in Cleveland for failing to disclose evidence that could have helped Buehner at trial. By the time the appellate court ordered a new trial, he’d spent nearly two decades behind bars.

Buehner is among a rare group of defendants in Ohio from 2017 to 2021 whose criminal trials were reversed after alleging that county prosecutors across the state had withheld police reports, witness statements and other evidence that could have favored their defense, an investigation by Columbia Journalism Investigations, Ideastream Public Media and The Ohio Newsroom found.

Appellate judges ruled that four defendants, including Buehner, had trials so tainted by misconduct that they warranted new trial s. While the numbers seem small, legal experts say these cases — about one per year over five years — likely represent a fraction of their actual occurrence. And all but one of these cases occurred in Cuyahoga County, the second most populous county in the state behind Franklin County.

The misconduct falls under a constitutional standard established 60 years ago by the U.S. Supreme Court case, “Brady v. Maryland.” It requires prosecutors to hand over evidence that could help a person’s defense. When they flout this standard, it is a Brady violation — the most egregious form of prosecutorial misconduct, experts said. The violations are extremely rare and Brady-related misconduct is difficult to prove, but when judges find that it has occurred, the result is often a new trial.

CJI and its partners examined hundreds of state appellate decisions to uncover claims of prosecutorial misconduct in Ohio, including Brady violations; reviewed hundreds of other court documents, police files and hearing transcripts to track misconduct cases through the criminal justice system; and interviewed more than 100 legal scholars, defense attorneys, judges, defendants and their families, as well as nearly three dozen former and current assistant county prosecutors throughout the state.

The data compiled by CJI and its partners offer a first-of-its-kind analysis of Ohio appellate cases alleging prosecutors withheld evidence that could have favored defendants, and is a window into what many experts consider a largely invisible national problem.

Legal scholars agree that it’s difficult to know the true extent of Brady-related misconduct in Ohio and beyond — it is, by its nature, hidden. What misconduct is uncovered is likely the tip of the iceberg, according to Brandon Garrett, a professor at Duke Law School who studies Brady claims.

In a national study set to be released in 2024, Garrett found prosecutors had failed to turn over evidence important enough to warrant a new trial in 10% of roughly 800 cases alleging Brady violations nationwide from 2015 to 2019.

“We were surprised that …the court really did find merit to the claims,” he said, adding that cases involving Brady violations spanned the nation.

Among our findings:

• Twenty-five of the 102 appeals that Ohio courts ruled on that alleged prosecutors had withheld favorable evidence during this five-year period were from Cuyahoga County. 

• Three of the four cases in which a court found prosecutors had withheld evidence that could clear a defendant were from Cuyahoga. Even when prosecutors had exculpatory evidence, they sometimes resisted disclosing it.

• Prosecuting attorneys found responsible for withholding evidence faced few, if any, consequences. In fact, some advanced in their careers, often overseeing major trials or moving into much-sought after jobs with the U.S. attorney’s office or the state attorney general’s office. At least one became a judge. 
  
• Defendants who were put behind bars have spent years — sometimes decades — trying to prove their civil rights were violated.

Cuyahoga County Prosecutor Michael O’Malley refused three requests for an interview for this story. First elected in 2016, O’Malley did not head the county prosecutor’s office during Buehner’s original criminal trial.

Kristen Sobieski, who oversees the appellate unit for the Cuyahoga County prosecutor’s office, acknowledged that the office has seen convictions reversed for violating the Brady standard. But she said that no prosecuting attorney involved in those cases intentionally concealed evidence.

“I have not once in my entire career in this office ever had an instance where one of our prosecutors with any sort of willfulness or intent took something to be exculpatory or mitigating and purposely did not disclose it,” said Sobieski, a 21-year veteran of the office.

Asked about CJI’s analysis showing a pattern of Brady violations there, Sobieski disputed the judges’ findings and blamed high caseloads and a “staggering” volume of information for prosecutors’ failures to turn over evidence.

“It’s not perfect,” she said. “But this isn’t alarming to me.”

There were around 1,200 criminal trials in Cuyahoga County between 2017 and 2021, and at least 25 appeals involving a Brady-related claim, CJI’s analysis shows.

When Brady violations are found to have merit, rarely are prosecutors disciplined, Garrett said.

“There’s not a lot of prosecutorial accountability coming out of these opinions, even when it reaches the level of an outright violation,” Garrett said.

Much like CJI’s analysis, the Duke study found more Brady allegations and violations in Cuyahoga than any other Ohio county, a finding Garrett called “surprising” and “really unusual” given that these claims were raised in similarly sized jurisdictions in the state.

“When a pattern like that comes to light, there should be consequences,” he said. “There should be an investigation of the office and there should be disciplinary action and review. . . . Just like there’s an automatic inquiry when police use deadly force.”

‘Prosecution discretion is almost total’

Prosecutors wield immense power in the criminal justice system. They decide who to charge with crimes, what punishment to seek and what evidence to use at trial.

“Prosecution discretion is almost total,” said Bennett Gershman, a Pace University law professor and former prosecutor who has studied misconduct in the profession.

They are responsible for knowing all evidence in the state’s possession, including evidence held by the police, and turning over anything they consider favorable to the defense.

Most states have adopted rules for criminal cases that govern what information prosecutors must disclose before trial. In 24 states, prosecutors must automatically produce certain evidence to the defense. Ten other states, including Ohio, require prosecutors to divulge it upon request.

Some counties in Ohio do more than the state’s rule requires: The Montgomery County prosecutor’s office, which encompasses Dayton, produces certain evidence without a defense request. The office encourages its prosecuting attorneys to work with police to collect evidence and to review cases with detectives to ensure prosecutors have gathered it all.

In Cuyahoga County, by contrast, the prosecutor’s office does the bare minimum. Its policy has assistant county prosecutors turn over certain evidence only when requested. Even then, it’s up to individual prosecuting attorneys and their supervisors. The office has no guidelines for ensuring full disclosure of law enforcement records.

Defendants face a high bar to prove that a prosecutor wrongfully withheld evidence. To make a successful Brady claim, they must uncover previously undisclosed evidence after trial and show it would have changed the guilty verdict. Judges must hold a hearing to examine the new evidence and decide whether it warrants a new trial.

Just because judges don’t confirm misconduct doesn’t mean a defendant’s claims are baseless, CJI’s data shows. In 11 of 97 appeals that did not result in Brady violations, Ohio appellate courts found the state had withheld or destroyed evidence. But they ruled it wasn’t important enough to reverse the case.

In the case of Hector Alvarado, who was convicted of murder for fatally stabbing a woman at a bar on New Year’s Day a decade ago, appellate judges in Lucas County found in 2017 there was no Brady-related misconduct. Three years later in 2020, a federal court ordered the state courts to consider undisclosed evidence, including a witness affidavit revealing that the prosecutor had coached his testimony against Alvarado. Before his case was retried, Alvarado took a plea deal in 2022 that did not require a guilty admission — a condition of most pleas — and was released from prison. He served nine years of a 15-to-life sentence.

The appeals process can take years — the Duke study found a successful Brady claim takes, on average, a decade to be resolved. And that’s only if a defendant finds out about the undisclosed evidence in the first place.

Case Western Reserve University School of Law professor Michael Benza, an expert in appellate law who has handled capital cases, said if defendants don’t have the resources, it’s nearly impossible to determine whether prosecutors withheld evidence. “The reality is that defendants will never — and I don’t use that word lightly — be able to find their Brady material if they are inside and don’t have outside help.”

‘You just deemed it non-exculpatory?’

Thirteen years before Buehner would need help uncovering his Brady material, he was a third-generation painter living what he calls the American dream — he had a house, a family and a bridge-painting job that took him around the country. He loved the thrill of walking bridge beams.

“That was so peaceful,” he said. “It sucks when the wind blows, though. I’ll tell you that.”

He was shocked to find himself in a Cleveland courtroom in January 2002, he said, accused of a murder that took place on the night he was celebrating his grandmother’s 61st birthday.  

Court records show Buehner was charged in the shooting death of Jerry Saunders based on the testimony of two witnesses — one of whom was selling drugs with Saunders at the time. The first witness failed to identify Buehner from a photo array of suspects, but later picked him out of a lineup.

The second witness, accused of being an accomplice, pinned the shooting on Buehner and, in a plea deal, agreed to testify against him.

The same month that he first walked into court, Buehner’s attorneys asked prosecutors to share evidence that could help prepare his defense.

This was before the state changed its rule requiring prosecutors to hand over copies of specific types of evidence upon request. At the time, the Cuyahoga prosecutor’s office policy had assistant county prosecutors sit in a room with defense attorneys before trial and read out loud defendant statements, witness names and any exculpatory evidence. They didn’t provide copies of those records; instead, defense attorneys had to take notes.

There was no formal system for tracking this information, according to court records, interviews and videos of office training sessions obtained by CJI and its partners.

Longtime Assistant County Prosecutor T. Allan Regas described the former policy in a video recording of a 2016 Brady compliance training. “We would look at a file and say, ‘What do I have to give up? I don’t have to give this up,’” he said. “This isn’t gonna change the outcome.’”

Cuyahoga County’s prosecutor’s office declined to comment on the policies of previous administrations.

Buehner’s attorneys asked prosecutors at least four times to turn over favorable evidence — including the same reports that Buehner’s friend would find through a records request years later. Each time, then-Cuyahoga County Assistant Prosecutor Richard Bombik either told the court he had no exculpatory materials or argued the information wasn’t relevant.

But records suggest prosecutors knew about some evidence that contradicted their case. In an April 2002 memo — penned two months before trial — Bombik and fellow prosecutor Christopher Keim referenced the witness testimony later found exculpatory: One eyewitness, they noted in this memo, “states there were two black males in the truck (despite both co-defendants being white).”

Keim, who left the office in July 2002 for private practice, declined to comment. Bombik retired in 2012 after three decades as an assistant county prosecutor. In an email, he said he always read his entire case file to defense attorneys, no matter how long it took.

“I took my responsibilities as a prosecuting attorney seriously, which included my obligation to disclose exculpatory information in every case I handled,” Bombik wrote in a March 2023 email.

In 2019, five years after Buehner had uncovered the withheld evidence, Keim and Bombik testified about their discovery practices at a hearing on whether Buehner should get a new trial.

On the stand, Keim agreed prosecutors would “obviously” share with the defense information indicating the shooter was a different race than the defendant.

In his testimony, Bombik cited the office’s then-policy on discovery. “I thought I was pretty liberal, as far as a prosecutor goes, with the information I shared,” he said.

Buehner’s defense attorney brought up a concealed statement that the appellate court said “deprived Buehner of his right to due process,” and asked Bombik whether he’d deemed the withheld eyewitness testimony non exculpatory.

“It just never entered my mind, that one,” Bombik replied.

In his email statement, Bombik disputed that the evidence was undisclosed, instead blaming Buehner’s original lead defense attorney, who lost his trial notes after he had moved his office around 2014. That attorney declined to comment, but testified in a 2019 hearing that he would have used the exculpatory material at trial had it been provided to him.

For Buehner, the withheld evidence came at a steep price. He, like the appellate judges, believes it would have tipped the case in his favor. “Having that additional evidence would have created that much more doubt,” he said.

‘Somebody finally believed me’

Michael Sutton and Kenny Phillips also suffered when prosecutors failed to disclose evidence. The Cleveland men were cleared last year after they had discovered undisclosed eyewitness testimony contradicting what prosecutors presented at trial. The pair were convicted in 2007 of attempted murder charges — and Phillips of an additional shooting-at-a-police-officer charge — stemming from a drive-by shooting. Combined, they received prison sentences of nearly 140 years: 46 and a half years for Sutton; 92 for Phillips. Both men are Black.

The incident derailed the then-teenagers from promising futures: Sutton was headed to the University of Akron on a full scholarship before his arrest; Phillips had a job at Cleveland’s Major League Baseball stadium.

“We was just kids ready to come into adulthood,” Sutton said.

Their convictions were based on the testimony of two Cleveland police officers who said they saw shots fired from Sutton’s 1987 Chevrolet into a black Lincoln. One officer testified that, during a subsequent foot chase, two people fired shots at him.

During opening statements at trial, then-Cuyahoga County Assistant Prosecutor Christopher Wagner mentioned two additional patrolmen on the scene that night. But Wagner didn’t ask the pair to corroborate the incriminating police testimony.

What wasn’t revealed at trial — and what prosecutors didn’t disclose to defense attorneys — was that these patrolmen had a different version of events. According to affidavits they would sign eight years later, the patrolmen, who were partners, said they never saw shots fired from Sutton’s car, nor did they hear any shots fired during the foot pursuit.

No longer on the Cleveland force, one of the patrolmen, Gregory Jones, later went to prison for rape. After seeing a news segment about Jones’ rape case, Sutton got in touch with him. Jones told the two men what he had witnessed that night and his eventual testimony prompted the appeal.

“I saw the time that they got. I was like, ‘Wow,’” Jones said in an interview for this story.

Before Sutton and Phillips went to trial, Jones said he and his then-partner told the lead detective on the case that they didn’t hear any shots fired at police officers.

The detective, Jones said, was “going to talk to the prosecutor,” and promised to return.

He did, and dismissed the patrolmen, Jones said. The detective now works for Olmsted Falls, a Cleveland suburb. He did not respond to requests for an interview.

Cuyahoga County Assistant Prosecutor Gregg Paul, who was not involved in the first trial and spoke with the detective while handling the Sutton and Phillips retrial years later, in September 2022, said that the detective had no recollection of a meeting with Jones.

Paul said he didn’t try to contact Jones himself. “Frankly, I don’t believe Gregory Jones,” Paul said.

Even if police hide evidence from prosecutors, the courts hold prosecutors responsible for failing to produce it — a legal duty emphasized during the Cuyahoga office training on Brady compliance.

“I know it’s like pulling teeth,” said Regas at the 2016 session, explaining that prosecutors must exercise due diligence when collecting information from detectives. “But you have to pull those teeth and make sure that you know everything the police know.”

Wagner, now a trial court judge in Cincinnati, said through an attorney that he wasn’t responsible for pre-trial discovery materials and didn’t join the Sutton and Phillips case until shortly before trial. He declined to be interviewed.

Former Cuyahoga County Assistant Prosecutor Gayle Williams-Byers fielded discovery requests for Sutton’s and Phillips’ original trial. She said the first and second chair prosecutors handling the case were responsible for turning over exculpatory material to the defense. Wagner was the lead prosecutor.

“It doesn’t matter what point you inherit the case, you inherit it with the continued obligation to comply with discovery,” said Williams-Byers, who went on to be a municipal judge in a Cleveland suburb.

By 2015, Sutton and Phillips had served eight years in prison when Jones and his then-partner signed their affidavits, sparking an appeal that would result in a new trial. The conflicting police testimony constituted a Brady violation, the appellate panel found, and threw the original verdicts into doubt.

O’Malley, then-Cuyahoga County’s newly elected prosecutor, did not head the office during Sutton’s and Phillips’ original criminal trial. But he defended the original conviction in this misconduct case and pursued a retrial, even after the appellate judges had ruled the withheld evidence undermined the guilty verdict so severely it prompted a reversal.

Sobieski, the appeals division supervisor, said she questioned the Brady violation rulings that hinged on witnesses coming forward after trial in this and other cases.

“[If] they were on the state’s witness list at the time of trial, or they even testified at a first trial, how can it possibly be construed as a state withholding or secreting away evidence?” she said.

Sutton and Phillips may see things differently. In September 2022, after serving 15 years in prison, a second jury acquitted the two men. After the judge read the “not guilty” verdict, Phillips shouted: “Somebody finally believed me!”

‘You should have did your due diligence’

Both the Sutton and Phillips and Buehner cases happened before 2010, the year Ohio amended the rules for trying criminal cases, including expanding access to police reports, witness statements and other law enforcement records.

Defense attorneys agree the rule has made it easier to obtain evidence before trial. But at least one case suggests it hasn’t protected defendants from Cuyahoga assistant county prosecutors’ failure to disclose favorable evidence.

In August 2017, Jermael Burton was arrested for a shooting incident at an East Cleveland house where Burton told police he lived. After the victim identified Burton as the shooter, prosecutors used his mail and filled prescription bottles to link him to weapons and drugs that police had found there. Burton was charged with attempted murder, felonious assault and drug possession, among other things.

Six months later, an East Cleveland detective testified at the trial that he discovered the items bearing Burton’s name in the house. But Burton said that those items were in his car’s glove box before the shooting. He said he saw two officers search his Chevrolet Cruze after his arrest, and his car had been towed to a police lot that night.

Burton produced two documents that he believed would back his claim: a private tow company receipt that named “ECPD” as the location, and a dispatch call log from the incident night putting the tow truck on the scene. The receipt belonged to Burton. And prosecutors gave his attorney the log before trial, he said. But the log didn’t include any notation that Burton’s car was actually towed.

Cuyahoga County Assistant Prosecutor Brad Meyer cast doubt on Burton’s testimony. “The only person who said that anyone went into the defendant’s car is the defendant, and his evidence to back it up didn’t match his story — his fairytale,” he said in closing arguments.

The jury acquitted Burton, who is Black, of the attempted murder and felonious assault charges but found him guilty of drug-related and other charges. He was sentenced to 11 years in prison.

After his trial, Burton’s former girlfriend requested and obtained East Cleveland police records. Among them was another tow document, previously undisclosed. It showed Burton’s car had, in fact, been hauled to a department yard on the incident night, just as he’d testified. Three officers were named on the document — including the detective who, at trial, had denied knowing whether Burton’s car had been towed.

Under the state’s 2010 rule, prosecutors were required to turn over police records about the towing of Burton’s car.

In March 2021, an appellate court ruled the uncovered police tow document could be exculpatory and ordered a hearing to determine whether Burton should get a new trial.

The Cuyahoga prosecutor’s office later reached a deal to reduce Burton’s prison term to four years, allowing him to be released in late December 2021. In an interview, Meyer said the office agreed to the deal because it’d become clear the court would have granted Burton a new trial.

Meyer acknowledged that the withheld tow document at the center of Burton’s appeal “was clearly known to somebody at East Cleveland.” But prosecutors turned over every piece of evidence known to them, he said, and he would have investigated if he’d been alerted to the towing issue before trial.

For Burton, it all seems too little, too late. He faulted the Cuyahoga prosecutor’s office for not collecting and sharing all the tow documents, even if the East Cleveland Police Department didn’t produce them.

“As a prosecutor, you should have did your due diligence,” Burton said.

Not one prosecutor punished

Elected county prosecutors can take internal action — everything from reprimanding to suspending and firing subordinates involved in Brady-related misconduct. In Cuyahoga County, the assistant prosecutors who withheld favorable evidence have faced no such consequences.

CJI and its partners obtained the personnel files of six assistant county prosecutors whose cases ended in Brady violations from 2017 to 2021. Only two — Meyer and James Gallagher, who worked on the Burton case — were still employed by the Cuyahoga prosecutor’s office when the appeals court affirmed the misconduct. Their files didn’t mention Burton’s case or the Brady violation. Meyer said he’s never been disciplined and his office hasn’t required him to undergo additional training on Brady compliance.

None of the six files contained any written or verbal reprimand about the handling of case evidence.

Sobieski suggested the Cuyahoga prosecutor’s office would discipline an employee who intentionally withheld information, although she said she’s never encountered such behavior.

“Those instances where we can learn,” she said, “we absolutely take advantage of those and try to make all of our prosecutors better and more aware.”

Nine former assistant county prosecutors said they don’t recall the prosecutor’s office punishing or re-training employees for Brady violations and similar discovery mistakes. The office didn’t track and review misconduct claims and rulings in any systematic way, they said.

Instead, the prosecutors’ careers appear to have been unaffected. Records show personnel files full of positive evaluations and letters penned by supervisors and victims’ families congratulating them on big trial wins. Some won accolades: Two years after Michael Buehner was convicted, Bombik received an award for “tenacity, professionalism, and integrity.” The award was named after Carmen Marino, an assistant prosecutor from 1972 to 2002, whose name was later stripped from the award after he was linked to Brady-related misconduct in myriad cases.

Shortly after his conviction, Burton filed a misconduct complaint against Meyer with the state’s Office of Disciplinary Counsel, he said, alleging that Meyer had misrepresented the tow documents to the jury.

By October 2018, the disciplinary counsel’s office had informed him it had closed his complaint.

“Prosecutorial misconduct is a claim that must be raised on appeal,” the office wrote in the Oct. 22 letter. It suggested Burton send a certified copy of a judicial finding of wrongdoing. “We will reopen our investigation at that time.”

Burton never re-filed his complaint because, he said, he doubted that the appeals court decision would satisfy the disciplinary counsel.

“I’m sorry he feels that way,” Meyer said.

Experts view this lack of accountability as the primary reason Brady misconduct persists. Ellen Yaroshefsky, a legal ethics professor at Hofstra University’s Maurice A. Deane School of Law in New York, has studied the policies that can contribute to Brady violations at prosecutors’ offices nationwide. She believes prosecutors’ offices have no will to discipline their own, and state disciplinary bodies fail to take Brady misconduct seriously. 

“If the system were serious about ensuring that innocent people didn’t get convicted . . . they would change the system and have some consequences,” Yaroshefksy said.

‘He missed all that’

For those on the receiving end, the consequences have been devastating.

Burton lost out on his daughter’s early years — she was nine months old when he went to prison. At first, his former partner brought their daughter to visit him twice a month. But those visits ceased during the C OVID-19 pandemic. Upon his release, Burton picked up his daughter for the first time in almost two years. Then four years old, she clung to her mother as if he were a stranger, said Burton, who describes the moment as “sour and sweet.”

The many years that Sutton and Phillips spent in prison have left both traumatized. Sutton often wakes up in a sweat, he said, “my t-shirt … soaking wet.” When Phillips sees a police car, he often pulls into the closest driveway and waits for it to pass. He’s knocked on people’s doors in order to avoid the police, he said. “That’s how terrified I be sometimes.”

The men hope to tell their story through speaking events at Ohio schools, prisons and churches. In early 2023, Sutton shared his experiences with students from the University of Akron, which has offered him and Phillips full-tuition scholarships. Touched by the gesture, Sutton said he hopes to finally be able to attend.

In July, Buehner returned to the same courthouse where his original trial had played out more than two decades earlier. This time, at his retrial, one of the witnesses whose statements had come to light through the 2014 public records request took the stand. She described the shooter as a Black man. It took the jury three hours of deliberation to acquit Buehner of murder and involuntary manslaughter charges.

After the “not guilty” verdict was read, Buehner wiped away tears.

For his family, the damage caused by the misconduct in his case already was done. As his years in prison passed, the losses outside his cell had mounted: his mother died; his fiancé left; and his two young sons grew up. He missed out on their childhood milestones, from playing tee ball to graduating high school.

“He missed all that,” said Buehner’s stepmother, Patricia. “You can never get it back.”

His father, Robert, whose own father was a Cuyahoga County sheriff’s deputy for decades, mourns another loss: his family’s faith in the criminal justice system.

“They went so far beyond to put him in there in the first place,” Robert Buehner said of the prosecutors involved in his son’s case. “Are they going to come up with something else to take him away again? That’s always gonna be in the back of my head.”

This story is a collaboration from NPR’s Station Investigations Team, which supports local investigative journalism; Columbia Journalism Investigations, an investigative reporting unit at the Columbia Journalism School in New York; and NPR member station Ideastream Public Media.  

Matthew Richmond is a reporter at Ideastream Public Media. Jake Kincaid and Cameron Oakes reported this story as fellows for CJI. CJI fellows Gabriela Alcalde and Patricia Martinez Sastre, CJI research assistants Frances Howe and Jake Millman, and NPR senior producer Robert Benincasa and Roy W. Howard fellow Tirzah Christopher contributed to the data analysis. The Ohio Newsroom, a collaboration among Ohio public radio stations, provided editing and other support.

This story was supported by the Fund for Investigative Journalism.

Copyright 2023 The Statehouse News Bureau. To see more, visit The Statehouse News Bureau.