By Jennifer Feehan
The Blade
TOLEDO, Ohio — A Lucas County judge on Tuesday rejected the contention by attorneys for Ray Abou-Arab, who was accused of arson, that investigators intentionally discarded a preliminary report that may have pointed to their client’s innocence.
Common Pleas Judge Stacy Cook denied a motion filed more than a year ago by attorneys for Mr. Abou-Arab.
In light of what attorneys Pete Rost and Sam Kaplan contended was the destruction of potentially exculpatory evidence, the defense had asked the court to appoint a special prosecutor, to order disclosure of grand jury testimony, and to dismiss the indictment, including the death-penalty specifications, against their client.
Mr. Abou-Arab, 63, formerly of Oregon, is being held in the Lucas County jail on two counts of aggravated murder, each with death penalty specifications; two counts of murder, eight counts of aggravated arson, and one count of tampering with evidence for allegedly setting a Jan. 26, 2014, fire at a Magnolia Street building he owned.
The fire resulted in the deaths of Toledo Fire Pvts. Stephen Machcinski, 42, and James Dickman, 31.
During a brief pretrial hearing Tuesday, Judge Cook scheduled a trial in the case -- the only pending death-penalty case in the county -- for Feb. 6. She said she anticipates taking approximately two weeks to seat a jury followed by three weeks for presentation of the case.
Although prosecutors contend the deadly fire was intentionally set in the garage area of the building, former arson investigator Glen Frames wrote in an initial report or notes that the fire “may have originated in the kitchen area of the lower, rear apartment.”
Arson investigator Dale Pelz and Toledo police Detective Deborah Hahn both recalled seeing Mr. Frames’ report, and they along with Mr. Frames testified about it at hearings held on the matter.
While the report cannot be located, Judge Cook concluded, it’s not really missing.
“The record, however, demonstrates the content of that writing still exists, as Frames, Pelz, and Hahn testified identically regarding the Frames opinion,” she wrote. “The record further demonstrated that the Frames opinion was merely speculation, and not a cause and origin opinion, potentially admissible as expert testimony. The fact that [Mr. Abou-Arab] is unable to present the writing itself, therefore, does not rise to the level of a violation of his right to a fair trial.”
Judge Cook said the missing report was not “materially exculpatory” -- a legal term that refers to evidence that tends to point to a defendant’s innocence.
“Considering the record evidence in this case, the Court does not find that the writing containing the speculative opinion of Frames as to the cause and origin of the fire is materially exculpatory evidence or useful evidence lost or destroyed due to bad faith conduct by the State,” her opinion states.
A gag order in the case prevented attorneys on both sides from commenting.
A pretrial hearing in the case was scheduled for Aug. 11.
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