August 20, 2014

Elyria
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Prosecutor accused of search scheme

Matthew Mishak.jpgELYRIA — The city’s chief prosecutor has been accused of orchestrating an illegal search of a domestic violence defendant’s home after two judges denied his requests for a search warrant.

Defense attorney Kenneth Lieux wrote in court documents filed Wednesday that when Prosecutor Matt Mishak’s efforts to get a search warrant failed last week, the victim in the case showed up at Kimberly Kalapos’ Bennett Drive home with an Elyria police escort last Friday night.

While Kalapos, who had rejected an earlier request from Mishak to allow a voluntary search of her house, was kept in the foyer by police, her daughter, Alyssa Harmon, was allowed to go to her old room. Alyssa took photographs of the bedroom that were then sent to Mishak, whose office forwarded the images to Lieux on Monday, according to the court documents.

The reason that Alyssa and her father, Greg Harmon, went to the house was ostensibly to collect “dress clothes” and a video game system, but Kalapos told him she didn’t think her daughter took any clothes, Lieux said. Instead, the 16-year-old took the pictures with her phone and left with an Xbox 360 and some video games.

“The whole thing was a ruse, a pretext to get into the house without a court order, without a warrant and they used that to gather evidence,” Lieux said.

Although Mishak has been ordered by Elyria Law Director Scott Serazin not to discuss the case, Scott Strait, another Elyria city prosecutor, said Thursday that the Harmons deny that Mishak was involved in planning last Friday’s visit to Kalapos’ house. Mishak also has denied wrongdoing, Strait said.

“At no time did Matt ever ask them to take photos of any evidence in the house,” Strait said. “They did that of their own accord.”

But Lieux said he finds it hard to accept that the Harmons took it upon themselves to gather evidence after Mishak was repeatedly rebuffed in his attempts to get a warrant in the days before the case was set for trial, something that was supposed to happen Thursday.

“My belief is that the prosecutor was involved in this,” Lieux said. “It doesn’t pass the smell test.”

Lieux said Alyssa had already been allowed back into the house once, shortly after she was granted a protection order against her mother, to gather up clothing and other personal items. That order gave Alyssa seven days from Feb. 5 to make the trip in the company of police. Lieux said it didn’t allow a second visit, with or without a police escort.

Kalapos is accused of hitting and choking Alyssa during a Feb. 4 fight over her daughter’s phone, according to a police report on the incident. Alyssa told police that Kalapos became upset and attacked her when she refused to give her mother the phone.

The report said there was a cut on Alyssa’s inner upper lip, red marks on her neck and defensive marks and scratches on her hands.

Lieux said the injuries were minor and that Kalapos was within her rights under the law, which allows parents to use reasonable force to discipline their children. Mishak had filed a motion asking that Lieux be barred from making that argument during trial.

Lieux said Kalapos was trying to take her daughter’s cell phone away from her because of a poor report card and when Alyssa refused to give up the phone, Kalapos took it away and a scuffle ensued. After Kalapos got the phone, she locked it up and left the house to run errands, he said.

Alyssa called her father, who took her to the Elyria Police Department to file a complaint. Court records indicate that custody of Alyssa has now been transferred from Kalapos to Harmon.

Last week, Alyssa added new details to her account, telling police and Mishak that her mother came into her room “fully disrobed and having a hammer in her hand demanding the phone.”
Alyssa told police that when her mother couldn’t get the phone away from her, Kalapos threw the hammer at her and the tool struck the wall near the bedroom door, leaving a hole.

It was that new information that prompted Mishak to seek a search warrant, according to court documents.

Elyria Municipal Court Judge Lisa Locke Graves, who was handling the case until she removed herself Wednesday, said that Mishak asked her about getting a warrant on July 23 and again on July 24, but she refused because the incident had happened months ago.

“You need freshness for a search warrant,” she said.

Locke Graves was off last Thursday and Friday as well as Monday of this week, but after she left on vacation last week, Mishak and Lieux went to see Bennett and in that meeting Mishak again asked for a warrant, something Lieux argued against.

Bennett said he turned down the request for the same reason as Locke Graves and suggested that Mishak talk to Locke Graves when she retuned Tuesday.

Bennett and Lieux both said that during their meeting with him Mishak never told them that he had previously asked Locke Graves for a search warrant or that she had turned him down. Locke Graves said Mishak asked her a third time on Tuesday about a warrant, but she again refused.

Lieux said Mishak’s efforts to convince two judges to grant a search warrant amounted to “judge shopping,” a practice frowned upon in the legal community.

Strait said Elyria prosecutors have already agreed not to use the photos taken by Alyssa and will bring in Avon Lake Prosecutor John Reulbach Jr. to take over the case from his office.

“This issue has taken on a life of its own and to avoid any appearance of impropriety we’re bringing in a third party,” Strait said.

Locke Graves said because she and Bennett may both end up being witnesses in the dispute she will ask the Ohio Supreme Court to select a random judge from elsewhere in the state to handle the matter.

Contact Brad Dicken at 329-7147
or bdicken@chroniclet.com.

  • KZ14

    The guy is trying to do his job, if you have nothing to hide then let them in

    • Larry Crnobrnja

      Your comment has left me scratching my head. Damn the constitution.

    • Mark B

      If you have nothing to hide i guess the city could install cameras in your house to monitor you 24/7 .When should the city schedule the install ?

      • JoyceEarly

        Exactly we have rights even if we aren’t doing anything wrong! People are so stupid today!

        • Joe Smith

          We have right ESPECIALLY when we are doing nothing wrong

      • KZ14

        Tomorrow would be fine

        • Joe Smith

          You give up your rights, I will fight to keep mine.

    • Gregory Baker

      If he was doing his J O B he wouldn’t have to go “Judge Shopping” to prove his case. When the Judge denies a motion or search warrant prosecutor needs to respect that bottom line. Doing his job my a…..

    • Derp

      Exactly, If you have nothing to hide in your butt hole you should let them look any time they want.

  • Melonie Reazor Houske

    Alyssa
    told police that when her mother couldn’t get the phone away from her -

    One comment says it started because her mom took her phone away. Another says her mom “couldn’t” get the phone away from her 16 year old daughter.
    Daughter gets mad because mom’s disciplining her and she doesn’t like it so she calls Dad.
    I know there’s so much we might not know from a simple article…..but that’s part of what’s wrong with society. Divorced parents should back each other up. I doubt the father is doing his daughter any favors by “rescuing” her from her punishment. Mom has raised her till 16…now that the diapers and babysitting days are over he’s going to step in. Unless there’s much we don’t know….I doubt he’s doing her any favors.
    Naked and a hammer……if true I’m shaking my head. If not…..shame on the daughter and the ex husband.
    This is sad anyway you look at it. Dad might be getting more than he bargained for.

  • mgk

    If the judge stepped down we all know there was wrong done. If dad took his daughter to do this knowing he was breaking the law what else does he allow her to do.

  • Don Grantzki

    If this was the defense attorney circumventing the order, this prosecutor would be up for charging him for an offense. Since it’s the state’s minion, he is above reproach. One more reason to see to it they hold those public “service” jobs for ONE FOUR YEAR TERM.

  • Paul Facinelli

    What’s this? A prosecutor apparently circumventing the rules in order to obtain a conviction? Oh, perish the thought.

  • Gregory Baker

    What a way to circumvent the previous Judges order-wait til they go on vacation and try to get the new Judge to approve your senseless search. Hope they take him to the bar association and revoke his license for a year at least.

    • Dino S.

      Obviously you’ve had some issues yourself! You don’t know the whole story and media loves to put their own spin on stories to make them more interesting than they are.

      • Gregory Baker

        Issues ? No. Experience yes. Just happen to know something about the law and the way things are supposed to work.

  • rlm_Lorain

    Seriously, you think the prosecutor orchestrated this? Why would he jeopardize his license for such a trivial case? What Alyssa and her father did is EXACTLY what I would have done if I needed to prove my case and the judicial system wasn’t helping. I wouldn’t need ANYONE to suggest this to me. The defense attorney is just trying to come up with a “fruit of the poisoned tree” ruse. They say the prosecutor had nothing to do with this idea, the prosecutor himself says he had nothing to do with this, and I believe them.

  • Teresa Walker-Murphy

    Rules have consequences if rules are broken and it looks like little girl cannot follow the rules of the house. If grades are poor and the consequence was hand over your phone then hand over your phone she did not….Trust you me I would have gotten that phone as well from my kids….No harm done here…..the only harm done is wasting peoples money and time over this…

  • LLL

    Wow, parents are allowed to use reasonable force to discipline your children? I do believe that choking and whatever led up to defensive injuries on the daughters hands is a bit more than discipline. I think it would have been much easier to have the phone turned off than to have a physical confrontation.

  • Heath J

    To the morons agreeing with KZ14, When should we schedule YOUR home inspection?

    You have nothing to hide, so it shouldn’t be an issue, right??

  • Sarah Boesger

    What a cluster. It’s another case of ‘it’s who you know in the Elyria Police Department.’