Death penalty off table in murder retrial

Man convicted in 2010 M-L murder now faces maximum sentence of life in prison without parole

Joseph L. Thomas will not face the death penalty when he is retried for the 2010 rape and murder of Annie McSween outside of a Mentor-on-the-Lake bar.

Assistant Lake County Prosecutor Paul Kaplan said at a Jan. 17 pretrial hearing that his office is dismissing the four death penalty specifications from Thomas’ 2011 grand jury indictment.

Thomas now faces a maximum penalty of life in prison without the possibility of parole

“We obviously do not take this decision lightly,” Kaplan said. “We put a lot of consideration in every aspect of the case.”

Kaplan said they discussed the consideration to dismiss the death penalty with consultation with surviving members of McSween’s family as well as the Mentor-on-the-Lake Police Department.

More than eight years have passed since the date of

McSween’s murder.

“The state, as well as the family, feels there is a need for a more immediate finality to this case,” Kaplan said.

Kaplan said they are still confident in the strength of their case against Thomas.

“We feel in many ways the evidence in this case is stronger than it was before,” he said.

“However the need for finality, for resolution sooner rather than later has become paramount to us.”

The body of McSween, 49, of Mentor in a wooded area outside of the Andrews Road bar where she worked as a bartender. McSween was strangled and stabbed multiple times in the neck and back. The power lines to the bar had been cut, and McSween and two other women had their tires slashed.

Thomas, now 34, was arrested in June 2011 in relation to McSween’s death.

A Lake County jury in September 2012 found Thomas guilty on all 11 charges against him: four counts of aggravated murder, three counts of kidnapping, one count of rape, two counts of aggravated robbery and one count of tampering with evidence.

The jury recommended the death penalty for Thomas. Lake County Common Pleas Court Judge Richard L. Collins chose to adopt the jury’s findings rather than downgrade the sentence to life in prison.

Five years after his conviction, the Ohio Supreme Court in a 4-3 decision, ordered a new trial be scheduled for Thomas.

Justice Terrence O’Donnell wrote the court’s lead opinion, which determined the trial court committed plain error by admitting those five knives that prosecutors knew were not used in the crime into evidence. The majority found a reasonable probability that the error affected the outcome of the trial, and that reversal was necessary to prevent a manifest miscarriage of justice.

Thomas has maintained his innocence and claimed he had no motivation to commit the crime. He faces the same 11 charges in his retrial.

Defense attorney Don Malarcik said he believes that if the case were to be presented before a grand jury today he does not think Thomas would face the death penalty.

He said he was very pleased with the dismissal and said he looks forward to defending the innocence of Thomas in court.

“I appreciate the way all the attorneys in here have conducted themselves on this very difficult case on this very difficult matter,” Malarcik said. “(Lake County Prosecutor Charles) Coulson has been very accessible and very available to us to have discussions.”

The case is now scheduled to begin in July, with jury selection beginning July 1.

Trial was scheduled to begin Feb. 4, with jury selection this month, but the trial date was continued. Kaplan said there had been a lot of requests — predominantly from the defense — for the retesting of DNA on evidence. The completion of that testing would have cut very close to the start of a February trial.

In a phone interview after the hearing, Coulson said the dismissal of the death penalty is something that had been under consideration since the Ohio Supreme Court overturned Thomas’ sentence in 2017.

“You’re always trying to decide the best course of action,” Coulson said.

He said that after weighing a number of factors, they decided this was the best way to proceed with the case.