Wells was seven cents short of the total. Adnan Wahdan, who owns the store with his brother Nasser, refused to let him slide on the difference. The customer wanted tobacco, Adnan thought, not bread or milk: He would pay $1.60 or he would do without the cigar, since Wells had already opened the pop.
"I ain't paying. It's just seven cents," the Wahdans say Wells responded. They argued, and Wells punctuated the disagreement by saying, "Fuck you, Arab," according to the storeowners.
Wells then scooped up his money and turned for the door. Though he left the opened pop on the counter, the brothers were not going to let him depart without paying for it. Nasser tried to put Wells in a headlock. Wells escaped, but the storeowners wrested his jacket away. When he came back into the store to retrieve his coat, the Wahdans locked the steel cage on the front door, trapping him inside. Wells and his friends then spit at them, threw bottles at the door, and yelled, "You fucking Arabs, we'll blow this place up," the Wahdans told police.
On the instructions of a police dispatcher, the storeowners unlocked the door and allowed Wells to exit. Adnan followed Wells to a nearby park and provided police his whereabouts. Moments later, Wells, Cherita Rogers, and Jonathan Alexander were arrested. Each was charged with two counts of ethnic intimidation.
In the tense days after September 11, a threat to bomb a convenience store owned by Palestinian Americans was not to be taken lightly. Six days before, a man drove his Mustang through the front doors of the Grand Mosque in Parma. "At that time, combating and preventing hate crimes was one of our challenges," says Rick Bell, head of the General Felony Unit in the Cuyahoga County Prosecutor's Office.
Three months later, though, a jury took just half an hour to find Wells and his friends not guilty. Today, Bell admits that the case doesn't look as compelling as it did in September. Wells and his friends denied threatening to blow up the store, and even the Wahdans testified that they didn't feel race or ethnicity motivated the defendants' actions. In the end, it was simply a beef over seven cents.
Prosecutors don't create crime. Their function is to administer justice, to translate the hieroglyphics of arrest reports and witness statements into narrative. Bill Mason, it could be said, is an especially vivid interpreter. That he pursued charges in the Scott's Grocery matter would surprise few in the legal community. Since he was elected in 1998, the number of indictments and trials has risen dramatically. It allows Mason to call himself tough on crime, but his zeal also leads the office to carry flimsy cases to fruition. Three out of every 10 cases the prosecutor tried last year ended in acquittal or were dismissed by the judge.
The price of Mason's aggressiveness, say his critics, is an overburdened judiciary, where just the hint of crime is met with full force. In the harshest view, Mason is writing the script for future campaigns with defendants' lives and the court's time. "Politics is their exclusive consideration," says George George, a public defender who worked as a prosecutor under Mason and his two predecessors. "There are other considerations -- for instance, did the guy do it?"
Defense attorneys are prone to find a ray of innocence in the darkest of souls, but even a few judges question the worthiness of some cases Mason pursues. "The state has a responsibility to file charges," Common Pleas Judge Eileen Gallagher says. Then she pauses and sighs. "I'll tell you this: A number of juries in the past year, after they've returned their verdict, have asked me, 'How did this get this far?' It's not just mine. I've talked to other judges, and they've had the same response from juries."
William D. Mason is polishing the image of a straight-backed, stiffed-lipped lawman. Male prosecutors have been ordered to shave their beards. When he discovered the office didn't have an official seal, Mason chose a gold badge. And when the Sheppard obsession returned to the front pages via Sam Reese's civil suit, he made the closing argument, though he rarely appears in court.
Mason isn't the first prosecutor to fashion himself a modern-day Eliot Ness. It is, after all, an elected office, and voters tend to reward the stalwart. Betty Montgomery ran on her conviction record as Wood County prosecutor to become Ohio's attorney general. Rudolph Giuliani made his name as a U.S. attorney by choking the Mafia. "I suppose any prosecutor wants to be seen as a law-and-order type," says defense attorney Jim Valentine, who once worked under Mason. "I guess he really wants to underscore that."
Indeed, Mason is lapping other Ohio prosecutors. In 2000, his office filed 16,062 new criminal cases. By comparison, the prosecutors in Franklin, Hamilton, and Lucas counties -- i.e., metro Columbus, Cincinnati, and Toledo -- together filed virtually the same number (16,018), despite almost 1 million more residents.
Per capita, Mason's indictment rate is more than double the state average. Cuyahoga County brought 11.5 criminal cases per 1,000 residents in 2000. The rest of the state averaged 4.5. Not even Lorain County's Greg White, hardly a shrinking violet, could keep pace. His rate was 5.6.
Cleveland may have more crime than any other Ohio city, but the disparity is also a measure of philosophy. In 1999, Mason's first year in office, indictments rose by 20 percent from the year before and have grown each year since.
Bell, who spoke to Scene on behalf of the office, says Mason is not searching for cases, but responding to complaints. Some years bring more crime than others. He notes that one year, in the early '90s, 24,000 indictments were handed down.
On the prosecutor's website, however, the numbers are treated like notches on a gunslinger's belt. The increase in indictments from 1998, Stephanie Tubbs Jones's last year in office, is presented in bar-graph form, evidencing Mason's "tough, aggressive stance against crime." In a January Plain Dealer article, Mason also used case volume to justify his habit of busting budgets. In 2000 and 2001, he spent a total of $3 million more than he was allotted. At the end of last year, he tried to skirt the county commission by asking the judges to sign off on a budget that was $2.6 million larger than what the commission authorized.
Whatever the reasons indictments have climbed, there's no question that Mason has made a conscious effort to try more cases. He claimed that, in 2001, he tried twice as many felony cases as Tubbs Jones did in her last year. He didn't -- according to the court administrator, Tubbs Jones tried 357 felony cases in 1998; Mason, 514 -- but it's a substantial increase just the same.
In fact, Mason's trial numbers are so high, they even puzzled the U.S. Department of Justice. Statistician Carol DeFrances collects data from prosecutors across the country. When she looked at the number of trials in Cuyahoga County, she called to verify, thinking there had been a mistake. There hadn't.
The office is proud of its readiness to try cases. Trials are seen as a fulfillment of duty, like sorties over enemy terrain. Bell says that trial work affords assistant prosecutors a chance to work on their craft. "We are a litigation firm, so if we have lawyers -- prosecutors -- who are able to stand in front of a jury and get that experience, they will become stronger lawyers and we will become stronger as a firm together," he says.
Trial work, Bell adds, is also an excellent way to evaluate attorneys on staff, and it shows victims that the office is willing to go to bat for them. "It's not something that we're attempting to do to inflate numbers; it's something we're attempting to do to better serve our citizens in the county."
One judge, who asked not to be named, agrees that taking cases to trial makes practical sense; it keeps sharp attorneys and judges alike. "The only negative consequence is that the judges' handicaps may rise," he says, a dig at his colleagues who fit golf into their workweeks.
Certainly there are those who praise Mason for putting mettle to the office. When a prosecutor serves an area like Cleveland, it's easy for justice to take the path of least resistance. "I have absolutely no problems with the way Bill is running his office," says Judge Thomas Pokorney.
And a good portion of the defense bar has few complaints beyond high bail amounts and the bureaucratic way plea bargains are meted out. "By and large, I think they do a very good job," says defense lawyer S. Michael Lear.
But others say Mason is frittering money that isn't his to spend. Since he took office, the county's bill for court-appointed defense attorneys has risen by 25 percent, from $4.8 million to $6 million. Jury costs are 72 percent higher than they were in 1998 (an increase also attributable to a bump in jurors' pay). More grand juries and more trials also mean a higher demand for police testimony. Cleveland police officers are on pace this year to log 267,000 hours of overtime for court appearances. In Tubbs Jones's last year, officers spent 127,000 hours in court.
Bell counters that the quest for justice shouldn't be driven by money. "If we have to go to trial because it's an important case for the community, that's what we need to do. We have to protect the citizens of the community."
Protection, though, comes at a price. "He's killing the system," a Cleveland defense attorney says. "The system is literally going to implode if he keeps going the way he's going."
Jihad Simaili was an assistant prosecutor until he quit in March. He resigned a day before Mason fired about a dozen staffers, four of them assistant prosecutors. A few months before he resigned, an Arab family told Simaili that a fellow student was threatening their daughter. Simaili says he informed the suburban school principal and the police chief of the threats, only to be rebuked by his superiors for speaking out of turn. With rumors swirling there would be layoffs, Simaili quit. It was a resignation his bosses "were happy to accept," he acknowledges.
Simaili is now a member of the fraternity of former prosecutors who believe that Mason "cares more about politics than justice itself." It might be easy to dismiss Simaili and other ex-prosecutors as self-righteous soreheads, were it not for the similarity of complaints: That a campaign-conscious Mason pads his indictment and trial numbers with weak cases. Simaili rues the occasions he had to "try a stupid, fifth-degree felony" simply because his supervisors -- who sign off on all plea bargains -- wouldn't reduce the charges.
Last year, Antioch Baptist Church Reverend Marvin McMickle served on a grand jury. After the experience, he wrote a blistering letter to Presiding Judge Richard J. McMonagle. McMickle wrote that the process had an "apartheid feel," as he saw mostly white cops bring evidence against mostly black and Hispanic suspects. McMickle also criticized the police and the prosecutor for what he saw as an overabundance of drug-possession cases.
A former chairman of the Cleveland NAACP making such accusations is hardly earth-shattering. What is revealing is that judges also wonder about the pettiness of some of Mason's cases. "As a former assistant county attorney from many years ago, I do think that the prosecutor's office needs to use some discretion in which cases to prosecute and which to perhaps choose other means," says Judge Ronald Suster, who spoke up at a meeting judges had with Mason last winter.
Judge McMonagle, while rejecting McMickle's claims of racism, agrees that too many small-fry drug cases arrive on his doorstep. Cities have municipal court to deal with minor offenses, and McMonagle wishes that more cases were handled there instead of in the Court of Common Pleas. "Some cases are eventually reduced to misdemeanors, so why can't they originally become misdemeanors?" he asks.
Because Mason wouldn't get credit for prosecuting them, says someone who worked in his office. A former employee, who asked not to be named, says that Mason, in order to keep his numbers high, has ordered area detectives to bring any and all possible felonies to him. The ex-employee was troubled most by the marijuana arrests that were charged as felony trafficking simply because the offenders -- many with no prior record -- had more than one bag of pot: "It's a wonderful way for the system to attack young black males."
Bell denies the allegation that Mason's office has made any such demands of the police. As far as drug cases are concerned, the office, Bell says, is simply enforcing the revised code. Those who think drug laws are too harsh should work to change them. "We can't ignore those cases when they come to our office."
While Mason brags about his office's eagerness to try cases, it is interesting that he doesn't advertise the win-loss record. Of the 576 felony and misdemeanor cases tried last year, 135 brought not-guilty verdicts, 34 were dismissed by the judge after the state presented its case, and 24 ended in a mistrial or a hung jury. The courts do not track wins and losses, so it's difficult to judge the county next to others, but at least one statistic suggests that Mason's indictments overreach. According to year 2000 data collected by the Ohio Supreme Court, the original charges were reduced in 56 percent of Cuyahoga County's plea bargains. Across the rest of the state, lesser pleas were handed out only 39 percent of the time.
"Almost every day, I hear someone got a not guilty," says Valentine, a defense attorney in the ethnic intimidation case. Jokes another attorney: "You think the defense bar suddenly became better lawyers? What, we're all F. Lee Bailey all of a sudden?"
Wins and losses aren't necessarily indicative of a prosecutor's abilities. In cases too close to call, letting a jury decide is often the best course of action, even if it ends in acquittal. A near-perfect conviction record might also be a sign that a prosecutor tries only cases he knows he can win. "In the abstract, it's more suspect when prosecutors bring cases and almost never lose," says Robert P. Lawry, a Case Western law professor.
Says Bell: "I tell the assistants under my charge that their job is not to win; their job is to put on their case. As prosecutors, unlike defense attorneys, your job is to seek justice; it's not to win at all costs."
Criminal justice is an untidy business. Thinking a suspect guilty and proving it are two different things. Mason's office lost a recent case in which a Willoughby Hills man had been charged with kidnapping and domestic violence. Police found a woman on West 25th Street screaming, "Help me, oh God, please help me!" She pointed police to a Buick and said that the driver, her husband, was trying to kill her. The woman said he dragged her by the hair into his car, punched her as he drove, and threatened to tie her up and throw her in the lake. Police found a small tuft of hair in the car. Her bra was ripped and there were marks on her face.
The suspect had previous convictions for abducting one former girlfriend and assaulting another. By all appearances, this was a bad man. The trouble for prosecutors was that the woman did not want to testify against her husband. She told police upon his arrest that she wouldn't sign charges. Prosecutors pressed ahead anyway. With the testimony of police and the emergency-room doctor, they felt they had enough.
They didn't. The jury was not allowed to hear of the man's past convictions, and the woman, as promised, recanted her story. Veteran defense attorney Stanley Tolliver Sr. was also able to make issue of the hours leading up to the incident, which the woman spent in a bar. Tolliver, who refers to Mason as "Parma Mason," a jab at the prosecutor's suburban roots and courtroom chops (as in, he is not to be mistaken for Perry Mason), says, "That was a case that should not have been prosecuted."
But it's hard to blame prosecutors for trying, especially in the case of a repeat offender. Bell calls the defendant "a menace and a danger to the community," adding, "I'm proud we took this case to trial."
Cases where there is an existing relationship between suspect and victim are difficult to manage. A thicket of emotions and shared history tends to obscure the facts. That said, Judge McMonagle says an inordinate number of domestic violence, assault, and sex cases fall apart between the indictment and trial.
When a case is brought before the grand jury, McMonagle says, the alleged victim seldom testifies; instead, his or her statement is read by a police officer. Almost without fail, the grand jury votes to indict. Then, when the case is to be tried, the person who reported the crime often doesn't show, recants, or is deemed an untrustworthy witness. "If I had a wish list," McMonagle says, "it was that all victims appear in front of a grand jury."
George George says Mason's office frequently lets the drama of sex-related charges cloud its judgment. He is presently defending a juvenile charged with rape. The boy is eight years old, an age incompatible with either criminal intent or sexual interest. "There's a mythology that any sex-crime allegation is inherently evil, and the reality is, it isn't," George says.
Tony Kellon worked for Tubbs Jones and for Mason before trading sides; he's now a public defender. Under Mason, Kellon worked in the Major Crime Unit, which tries rape cases. "There were several cases I thought were bogus or a waste of time," he says.
Kellon tells the tale of a man accused of luring an 18-year-old woman into his car and then raping her at his home. The man's wife surprised him, entering their Cleveland Heights home while he had the young woman upstairs. The young woman claimed to have yelled, "He raped me," when the wife came into the bedroom. In the wife's statement to police, however, the young woman simply said, "We didn't do anything." There was no mention of a cry of rape.
As a juvenile, Kellon says, the accuser was a perpetual runaway who had previously filed false charges. Still, the man was indicted for rape and kidnapping. Four months passed before the charges were dropped.
Kellon handled another case in 1999, in which a Brook Park woman told police that a man in her apartment building cornered her, tried to force her to give him oral sex, and fondled her. The man had an extensive record of convictions for drug abuse, assault, and robbery, though nothing sex-related.
The woman, police also learned, was a schizophrenic who treated her condition with Valium and Darvocet. She had been on lithium, but stopped taking the drug, she said, because she didn't like the way it made her feel.
Police reports say the woman changed her statement several times. Investigators administered a voice stress test that indicated deceit when she answered "yes" to questions about whether the man had pulled his penis from his shorts and whether he attempted to force her into oral sex. Neither the officer who first responded to the complaint nor the detective who investigated made an arrest.
No physical evidence, changing statements, a mentally disturbed victim -- the case barked like a dog. Kellon says that at one point, he jotted a note to himself: This is the worst case I've ever seen. Yet the man was indicted on a battery of heavy charges -- gross sexual imposition, kidnapping, attempted rape. Faced with the possibility of a long prison sentence, he pleaded to a misdemeanor count of sexual imposition.
Bell admits the matter "was not one of those slam-dunk cases," but he notes that the suspect had first said he wasn't in the woman's apartment on the date in question, only to later tell his probation officer that he was. "We have an obligation to look at what she has said and weigh it against his lies and his violent past."
The Brook Park case earned the prosecutor a conviction, but given the evidence, it would seem a hollow victory. "You end up having an individual plead to something who really may be innocent," says a former Mason employee, speaking generally. "It seems impossible, but it happens all the time."
If the prosecutor is fallible in relationship cases, it may be because Mason has wired the office to "empower" accusers. He created a stalking and domestic-violence unit; five staffers are dedicated to a victim-rights department. Such efforts sound admirable, but the knock on Mason is that he treats accusers too much like clients, when a prosecutor's job is to seek justice for the community as a whole. Critics say the office's pro-victim outlook disables it from separating legitimate complaints from what one attorney calls "grudge charges."
Three years ago, a jury found a Cleveland man not guilty of domestic violence. According to the police report, the man grabbed his wife by the arm and threw her around. But at trial, the testimony suggested something other than domestic violence. "It almost seemed like they were into sex play, spanking, and whatnot," remembers juror Joel Bussman. When the jurors met to deliberate, Bussman says, they could barely contain their snickers. The judge, too, was "almost laughing. He said it was one of the silliest cases he had ever seen." Bussman thought that the wife had pressed charges out of spite. "It sounded like she got upset and just wanted to get back at him."
The Periandri case appears to be an egregious example of what happens when a grudge charge goes unchecked. Last year, a Cleveland police officer and four brothers were indicted for conspiring to assault a woman in a supermarket parking lot. Police found the woman, Tracy Mora, with a phone cord wrapped around her neck and a bag on her head. Prosecutors painted a fantastic plot: Mitchell Periandri, who was in jail, convinced his ex-girlfriend, patrolwoman Kathy Bowman, and his three brothers to attack Mora, a former co-worker who had accused him of rape. The Periandri boys supposedly scratched their names on Mora's pelvic area.
As chronicled in Scene ["A Family Framed?" December 13, 2001], Mora remembered little on the night of the attack, yet was able to recount the incident with precision two weeks later, only to change or add important details later. The hospital staff didn't note any scratch marks. A psychiatrist wrote that Mora's calm, pleasant demeanor was "incongruous to what had happened." The state's other chief witness was a jailhouse snitch with a history of con artistry.
Charges were dismissed last October, though the prosecutor refuses to concede a mistake was made. The matter remains under investigation, and Bell says the case "still has a chance of being prosecuted." The Periandris and Bowman have filed lawsuits against the county.
What, at least for now, looks like a horrible lapse in judgment might have been avoided if the prosecutor's office hadn't locked itself in to Mora's story. For instance, 17 people volunteered to tell the grand jury that one of the brothers, Gino Periandri, was at an AA meeting at the time of the alleged attack. But a defense attorney not involved in the case says prosecutors often plug their ears to alternate theories. Offers to discuss a case with a suspect off the record, for example, are routinely rejected, the attorney says. "They should be more open to what the facts really are, as opposed to what they perceive them to be."
Cherita Rogers hadn't been in trouble with the law before being charged with ethnic intimidation after the Scott's Grocery incident. She worked for a home health-care agency, a job she no longer has. The agency put her on unpaid leave while the charges were pending. She and Wells spent 18 days in jail until they posted bond. Their children, ages seven and three, stayed with relatives.
Rogers admits that during the "hooting and hollering" that day, she and her co-defendants probably did refer to the Wahdans as "fucking Arabs." Their hostility, she says, was in response to the cage door closing on Wells. She insists that no one threatened to blow up the store. "It was just a whole disaster," she says. "All over a misunderstanding, all for seven cents."
Ironically, the Wahdans' perception of the case is not that far from Rogers's. Adnan Wahdan says that he felt insulted by the defendants, but he sounds less the victim of a hate crime than a shop owner who doesn't take shit from customers. "It's my pop," he says. "I pay for this. So why should you be able to drink a pop and not pay for it? That's what this case is all about."
For Mason's office, the case was about something else. Bell holds the statements the Wahdans made. "What's written down there is a crime," Bell says. The alleged threats are typed in all caps. But the context might as well be written in invisible ink.