Rapist gets retrial after appeals court cites judge’s errors
CLEVELAND — A man serving a life sentence after he was convicted in 2016 of raping a sleeping woman in a downtown Cleveland hotel will get a new trial, a panel of appeals court judges ruled.
The panel at the 8th District Court of Appeals determined that Mitchell Hartman did not receive a fair trial after Cuyahoga County Judge Peter Corrigan let a victim from a previous criminal case testify at his new trial and told jurors to consider Hartman’s leaving the scene as evidence of “consciousness of guilt.”
Two out of three judges held that even though there was enough evidence to uphold Hartman’s conviction, Corrigan’s errors unfairly prejudiced him in the eyes of the jury and ordered that he receive a new trial.
Cuyahoga County Prosecutor Michael O’Malley’s office says the court’s decision is at odds with one of its previous rulings and is deciding whether to ask the court to reconsider its decision.
The opinion was written in two parts. Judge Patricia Blackmon wrote the first part finding there was sufficient evidence to prove that Hartman committed rape. She was joined by Presiding Judge Mary Eileen Kilbane. Judge Melody Stewart, who is running as a Democrat for a seat on the Ohio Supreme Court, wrote the second part of the opinion and ordered Hartman a new trial.
Blackmon dissented in the second part and wrote that she would have upheld the convictions.
The incident
The woman, her boyfriend and two friends visited Ohio from South Carolina in September 2015. One of the friends invited Hartman to join them for drinks in their room at the Westin before they went out for drinks. The woman said she met Hartman once before.
The woman left the bar early and went back to the hotel to go to sleep while the other friends stayed out.
Hartman stayed out for a while and eventually told everyone else that he was going home, but he went back to the hotel to get a bag. The host at the front desk testified that Hartman asked for a key to the room, but she wouldn’t let him in without permission from one of the occupants. She called one of the friends, who gave her permission to give Hartman a key to the room.
Hartman entered the room, and the woman said she awoke to Hartman sticking his penis in her mouth. She screamed and told him to leave, and Hartman ran out of the room.
Jurors convicted Hartman of rape with specifications that he was a sexually violent predator, charges that carry a mandatory sentence of life with first chance at parole after 10 years.
The errors
Hartman appealed his conviction on several grounds, including that Corrigan should not have allowed a girl who in 2012 accused Hartman of fondling her while she slept to testify at his new trial.
Hartman pleaded guilty to abduction and attempted felonious assault in the 2012 case.
Corrigan granted a request from Assistant Cuyahoga County Prosecutor Max Martin to let the girl testify in an attempt to prove Hartman’s identity, motive for entering the hotel and history of preying on women and girls who were asleep.
Corrigan also granted Martin’s request to give the jury what’s called a “flight instruction” and tell jurors they can consider that someone who avoids arrest or detection has a “consciousness of guilt,” even though the woman had yelled for Hartman to leave.
Stewart wrote in the 8th District’s opinion that the girl’s testimony did nothing to establish Hartman’s motive in committing the assault and was highly prejudicial to the jury because “it not only portrayed him as repeat sex offender, but as pedophile too.”
Stewart also called “troubling” the number of cases where the court has found that prosecutors wrongly sought — and judges wrongly allowed — flight instructions. Stewart pointed to seven cases between 2014 and 2017 where the court has found judges wrongly granted prosecution’s request for flight instructions.
Prosecutors point to a 2017 decision by a different set of 8th District judges who upheld Corrigan’s decision in another 2016 trial to allow a previous victim to testify. In that case, Cleveland EMS technician Glen Burks was found guilty of fondling an AT&T employee while off-duty at his home and a fellow cadet he was on the job and sentenced to four years in prison.
Burks had been fired in 2009 but won his job back through arbitration after a jury acquitted him of fondling a patient strapped to a gurney.
Corrigan allowed the victim from eight years earlier to testify even though Burks was found not guilty in that case. A three-judge panel upheld that decision, with Judge Frank Celebrezze writing the opinion, and Burks remains in prison.