Akron attorney Don Malarcik has represented defendants in six death penalty cases in the past 15 years.
None was sentenced to death.
Malarcik, a staunch death penalty opponent, takes pride in his perfect record on what he considers his most important work.
“I have represented individuals I’m comfortable with never being free again,” Malarcik said in a recent interview. “I never represented someone I thought should die.”
Rather than asking, “Does he deserve to die?” Malarcik thinks the question should be, “Do we deserve to kill?” For him, the answer is no.
Malarcik and his partners, Brian Pierce and Joe Gorman, are well-known in Summit County for their criminal defense work.
In 2001, Malarcik attended Trial Lawyer’s College in Wyoming, a lawyer training program started by nationally known defense attorney Gerry Spence. Malarcik, an attorney for 23 years, now teaches there, including giving instruction on death penalty cases.
Malarcik and Pierce represented Eric Hendon last year, Summit County’s last death penalty case. Hendon was sentenced to life in prison without parole for the triple murder in Barberton.
When Hendon’s trial concluded in April, Malarcik and Pierce criticized the Summit County Prosecutor’s Office for continuing to pursue the death penalty when juries seem unwilling to recommend it. In the county’s last 10 capital cases since 2014, only one drew a death sentence. The rest resulted in life sentences.
“Our system in Summit County is broken,” Malarcik said. “We are hemorrhaging money — at an enormous emotional cost. An objective person who looks at what has happened in the last three years would come to the same conclusion.”
History
Though Malarcik has never lost a capital case at trial, he represented a death row inmate in his federal appeals.
Mark Brown was convicted of a double murder in Youngstown that he committed when he was 18. He was executed in 2007.
Malarcik visited Brown two days before he was executed and told him: “I failed you. I’m sorry.” He said Brown comforted him and assured him he had done all he could.
“The man the state killed and the man who committed this crime when he was 18 were two different people,” Malarcik said. “People change. They have the capacity to grow.”
Malarcik learned about handling death penalty cases in 2001 when he spent three weeks at Trial Lawyer’s College. He described the experience as life-changing and said it shifted how he related to clients, the court, and his family and friends.
Malarcik recalls instructor Cyndy Short, who has handled 100 capital cases and never had a client sentenced to death, telling the attorneys to be “completely unafraid” when handling a death penalty case. She said they must take jurors into a world they are unfamiliar with and show the origins of how the defendant got to where he or she ended up.
Since 2006, Malarcik traveled to Wyoming twice a year to teach at Trial Lawyer’s College. He will return again in November.
Process
Malarcik said he approaches death penalty cases differently from noncapital cases.
“Death is different,” he said. “There is only one right way to do a death penalty case — by putting the time in.”
Malarcik said he and Pierce spent dozens of hours with Tina Hendon Evans, Eric Hendon’s sister who testified during the sentencing phase of Hendon’s case about a childhood filled with abuse and neglect. He said they also spent time at the home of Hendon’s mother, who didn’t testify but talked to him and Pierce about the past and gave them family photographs.
Malarcik said he models how he wants jurors to treat each other and his client during a death penalty trial by being respectful to prosecutors, judges and witnesses even when he has a conflict with them. In a nondeath case, for example, he said he might be aggressive when questioning a police officer about the process used in collecting evidence at the crime scene. In a death case, he said this demeanor could be seen as “modeling vengeance.”
“You must get to the truth in a way that allows the jury to understand choices,” he said.
Malarcik applied this technique in the capital murder case of Jermaine McKinney from Trumbull County. McKinney’s co-defendant was his pregnant girlfriend. Malarcik said he might have attacked her in a noncapital case, but in McKinney’s case he questioned her about having her baby while in custody and missing the baby’s first steps. He said she was in tears when he concluded by saying he understood that she had to choose between her baby and testifying against McKinney.
“Jermaine’s life was saved,” Malarcik said of the outcome of the trial, which resulted in a life-in-prison sentence.
Cost
Malarcik said he thinks Summit County should take death off the table.
He pointed out that death sentences have declined statewide and in Summit County since Ohio’s law changed in 2005 to allow life in prison without parole as a sentencing option. Previously, prosecutors had to seek the death penalty against a defendant for life without parole to be considered.
Since Sherri Bevan Walsh became prosecutor in 2001, the county has had 37 capital punishment cases, with death sentences given in nine cases or 24 percent. Since 2014, however, death has only been given in one of 10 capital cases or 10 percent. The other nine defendants were sentenced to life in prison, with most having no parole possibility, according to a Beacon Journal analysis.
Malarcik said the additional resources required for capital cases could be put to better use, such as into law enforcement or child protective services.
“I don’t think they should be charging death,” he said. “I don’t believe they have made the best use of the resources in Summit County.”
Malarcik, however, defended the nearly $100,000 he and Pierce were paid on the Hendon case. (Hendon was indigent, so his defense was paid for by taxpayers.) He said this is a reflection of the amount of time they put into Hendon’s defense.
Malarcik said he loses money when trying a capital case because of other legal work he is unable to do.
Malarcik isn’t opposed to the idea of creating a public defender’s office for felony cases in Summit County, as long as the office receives funding and training comparable to the prosecutor’s office. He pointed to the federal court system as a positive example.
“If there is not equity, there will not be justice,” he said.
Malarcik’s work on death penalty cases has cost him friendships with police officers and prosecutors and caused strained relationships with judges. Despite this, he said he will continue handling the cases as long as Ohio allows capital punishment.
“I wouldn’t have it any other way,” he said. “This is the most important work anyone can do as a lawyer. You feel the weight of someone’s life in your hands.”
Stephanie Warsmith can be reached at 330-996-3705, swarsmith@thebeaconjournal.com and on Twitter: @swarsmithabj .