ELYRIA — The Lorain County Bar Association has cleared Elyria City Prosecutor Matt Mishak of allegations he sent a crime victim to conduct an illegal search after two judges rejected his requests for a search warrant.
Mishak’s handling of the domestic violence case against Kimberly Kalapos fell under scrutiny after the victim in the case, Kalapos’ daughter Alyssa Harmon, went to her mother’s home in July and photographed her room, where she had told police her mother had attacked her in February.
Kalapos’ attorney, Kenneth Lieux, raised concerns after Mishak sent him the photos taken by Harmon. Lieux argued it appeared that Mishak had asked Harmon and her father to obtain the photos after his requests for search warrants were rejected by both Elyria Municipal Court Judge Lisa Locke Graves and Gary Bennett, who had told Mishak that too much time had passed to justify granting a search warrant.
In a Nov. 12 letter, released by Mishak on Tuesday, bar association attorney Stephen Meckler wrote that the investigation showed Mishak wasn’t behind Harmon’s efforts to get photos of her old room.
Meckler wrote that both Harmon and her father told investigators “that Attorney Mishak did not suggest or induce them to take photos of the home where the alleged domestic violence occurred.”
Based on the investigation, Meckler wrote that he and fellow attorney Matt Dooley determined there was “no ethical violation” by Mishak.
Mishak said Tuesday he never asked Harmon to go get photos of the damage she claimed her mother caused to her wall by throwing a hammer at her during the February altercation.
He said that the allegations about the hammer weren’t contained in the initial police report and he learned about them July 23, roughly a week before the case was to go to trial. He said he asked Lieux if police could search Kalapos’ home, but Lieux replied that was unlikely.
Mishak said he then met with Locke Graves and told her he might be seeking a search warrant and explained what case it would deal with. Although she told him the evidence would likely be “stale” because of the amount of time that had passed since the incident, Mishak said he wanted to perform his due diligence.
He said the officer who investigated the case against Kalapos didn’t recall Harmon ever telling him about the hammer, so he asked detectives to interview Harmon so they could prepare an affidavit he could use to ask for a search warrant.
Locke Graves has previously said she told Mishak on both July 23 and 24 that she wouldn’t grant a search warrant in the case.
Because Locke Graves went on vacation later that week, Mishak said he met with Lieux and Bennett on July 26 and Bennett also told him he wouldn’t grant a search warrant. Both Lieux and Bennett said Mishak never told them that he had already discussed getting a search warrant with Locke Graves.
That same day, Mishak said, Harmon asked him about going to Kalapos’ home to get some dress clothes and he told her to contact police to go with her.
Harmon ended up going to the house and snapping pictures in her room, although Lieux has said she didn’t take any dress clothes with her when she left.
On July 29, Mishak received the emailed photos Harmon had taken and forwarded them to Lieux, who then asked for Mishak to be removed from the case and for the photos to be barred from being used in trial.
Lieux also suggested that Mishak had gone “judge shopping,” a practice frowned upon in legal circles, by going to Bennett after Locke Graves, who ultimately removed herself from the case, rejected his requests for a search warrant.
But Mishak said he never made a formal search warrant request. Instead, he said, he was informing Locke Graves about the situation.
“I never intended to deceive anybody,” he said.
Kalapos pleaded no contest to a reduced charge of menacing and was fined $150.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.