'In the Jury Room': State v. Ducic

C L E V E L A N D, Aug. 10, 2004 -- Part one of In the Jury Room follows the case of Mark Ducic, a 47-year-old charged with two murders. If convicted, a jury of 12 of his peers would be asked to decide whether he should be sentenced to death by lethal injection.

Watch Part 1 of In the Jury Room: State of Ohio vs. Mark Ducic on Tuesday at 10 p.m. ET on ABC. Part 2 airs on Wednesday at the same time.

In September 2001, Barbara Davis, Mark Ducic's common-law wife, was found dead at the home of one of Ducic's friends, Don Ehrke. There were lethal amounts of numerous drugs in her system, and the police believed that Davis, a longtime drug abuser, died from an accidental overdose.

Ehrke was also found dead 16 months later. The coroner initially ruled Ehrke's death an accidental overdose as well, but Cleveland prosecutor Dan Kasaris believed Ducic murdered both Davis and Ehrke by intentionally giving them fatal concoctions of drugs.

Kasaris believed that Ducic murdered Davis, his longtime girlfriend, because she threatened to turn him in to the police for drug dealing, and then killed Ehrke because he was the only witness to Davis' murder. For these crimes Kasaris and his co-counsel, fellow prosecutor Mark Mahoney, would ask a jury to convict Ducic of mass murder and sentence him to death.

"Mark Ducic is a danger to the citizens of Euclid, the citizens of Cuyahoga County, to the citizens of Ohio. This time when he committed crimes, he killed two people. I think with this man, with these circumstances, it justifies the death penalty," Kasaris said.

John Luskin, Ducic's court-appointed counsel, believed that Davis and Ehrke's deaths were not murder, but rather the accidental overdoses of two drug abusers.

"Mark Ducic is not a murderer. That's what my gut instinct tells me. Thirty years of experience is telling me that's not the right guy. And the 13-odd death penalty cases I have tried, I have no one on death row, and I don't want to start with Ducic," said Luskin, a former police captain turned defense lawyer.

Tall Tale or Confession?

The prosecution's case centered on 15 hours of audio recordings made by Brad Weiss, a friend of Ducic's from prison who became a police informant. Rather than face theft charges, Weiss cut a deal with Kasaris and agreed to work with the police as an informant against Ducic.

Weiss told Kasaris that Ducic had been bragging about killing two people and successfully fooling the authorities. Kasaris and the police came up with a plan to catch Ducic. "We decided we were going to send the informant in, wearing a recording device, and we were going to hire Ducic to kill a person, the same way that he had killed the other two people."

On the recordings, Ducic explains that he can mix prescription drug OxyContin with other drugs and create a murder weapon, which he calls a hotshot, and then make it look like an accidental overdose.

"That's why the cops can't get me. It's too easy to do, as long as they have a history," Ducic told Weiss during one of the recorded conversations.

Luskin planned to argue that Weiss manipulated Ducic knowing he was a compulsive liar, and set him up so he could stay out of prison himself.

"Brad Weiss took advantage of Mark Ducic in a way that is really very pathetic. He sat there, and took a guy that's down and out, an addict, everything else. He brought him beer. He brought him dope. He got him high, and when he did all these things, then he pumps him with this stuff," he said.

As recently as five months earlier, Weiss failed a drug test, and the prosecution team kept a close eye on him to make sure he did not relapse before trial. If he didn't make it to court, their case could collapse.

"If you can use bad guys to get bad guys, to get Ducic, you know, we gotta do things that maybe we wouldn't normally do. But the greater good demands that we do that," Kasaris explained.

Ducic claimed that on the recordings he was only bragging to ingratiate himself to Weiss, who is the son of a wealthy Cleveland businessman: "I was trying to be the hard-core hit man, which at one time, everybody says, he thought I was."

Willing to Impose the Death Penalty?

On May 24, 2004, jury selection began in case number 440378, State of Ohio v. Mark Ducic. Judge Nancy McDonnell told the jury that they might be called upon to give a recommendation on sentencing and that the death penalty was a possible sentence.

McDonnell said that therefore, "it is proper that the court and counsel ask you certain questions pertaining to your views regarding the death penalty."

McDonnell, with the lawyers and Ducic, called each of the 48 prospective jurors into her chambers for questioning about their individual views and willingness to impose the death penalty.

"Are you religiously, morally, or otherwise against the imposition of the death penalty?" McDonnell asked each juror.

Because the jury would have to consider the death penalty as a possible punishment if they convicted Ducic of mass murder, any of the prospective jurors who was adamantly against the death penalty would be automatically excluded from the jury pool.

In two days of jury selection, only six of the prospective jurors said they would be unable to sentence Ducic to death. The selected jury of 12 included a mail carrier, a restaurant manager, a student and a businessman.

Opening Arguments

Prosecutor Kasaris opened the trial by telling the jury that Ducic was an expert in three areas: drugs, talking, and killing people. He said the case was about the "expertise of Mark Ducic."

Kasaris went on to list the charges Ducic faced in addition to the two counts of aggravated murder for the deaths of Davis and Ehrke. The other charges included drug trafficking, attempted aggravated murder, intimidation, and retaliation.

Luskin began his defense by telling the jury that Ducic was not a killer, but merely a showoff, and that the trial was "not about winning, and it's not about losing. It's about searching for the truth."

Prosecution's Witnesses

Kasaris and Mahoney had a witness list filled with former friends and family of Ducic and Davis. The prosecution would try to demonstrate that Ducic had carefully planned to kill both Davis and Erhke and that he bragged about being able to commit the crimes without being caught.

Victim's Brother Testifies

Joe Belz, Davis's brother, was one of the last people to see her alive. Belz testified that the day before she died, Davis arranged to meet a friend for a drink. Unbeknownst to Davis, Belz and Ducic had also arranged to meet at the bar for a drug deal.

Belz says that he sold Ducic 10 80-milligram tablets of OxyContin, a powerful prescription pain killer. The next morning, Davis was found dead. In her system was a fatal mix of alcohol, Valium, cocaine and OxyContin. The OxyContin was 10 times the therapeutic level.

Ducic's Ex-Wife Testifies

Another key witness for the prosecution was Ducic's ex-wife Marie, who was also a friend of Davis. Marie testified that she had overheard an argument between Davis and Ducic that the prosecution thought demonstrated motive. Marie said she overheard Davis saying she was going to tell the police that Ducic been taking her Social Security checks and prescription pills.

Marie also testified that, at the time of Ehrke's death, she was taking Hydromet, a prescription opiate-based cough syrup, and that Ducic had asked her to bring the medicine to Ehrke's house because he said Ehrke was sick.

When Marie went to Ehrke's house, she discovered he wasn't sick, and when she demanded that Ducic give her medicine back a few hours later, he returned an empty Hydromet bottle to her.

A day later, Ehrke was found dead. In his system was a fatal mix of codeine, Flexerol and hydrocodone — the active ingredient in Marie's Hydromet cough syrup. As with Barbara Davis' OxyContin level, the level of hydrocodone found in Ehrke's system was 10 times the therapeutic dose.

Coroner Presents Evidence

The Cuyahoga County coroner, Dr. Elizabeth Balraj — whose office initially ruled Davis and Ehrke's deaths were accidents — testified for the prosecution that she changed her ruling to murder after the police gave her additional information. Balraj's second ruling allowed the state to prosecute Ducic for murder.

During his cross-examination for the defense, Luskin wanted the jury to understand that it wasn't a change in the medical facts that caused Balraj to change her mind. Balraj changed her ruling after she listened to excerpts of the recorded conversations in which Ducic bragged about the murders.

"She was pretty damaging as far as everything goes. I mean, she is not being shaken, but I think the thrust of our argument is going to be that she listened to Mark Ducic's puffery, his intoxicated puffery, and his manipulation by Brad Weiss. It was those statements that Balraj made her decision," Luskin said after Balraj's testimony.

Informant Takes the Stand

After the testimony and cross-examination of Balraj, it was clear that the state's case rested on Weiss.

Weiss, the former friend of Ducic turned police informant, testified about the detectives' plan, in which Weiss would hire Ducic to kill a fictitious woman, the same way Ducic had said he killed Davis and Ehrke.

Kasaris played excerpts from the recordings for the jury and asked Weiss to clarify the conversations. On the recording, the jury heard Ducic tell Weiss he could handle the proposed job: "Anytime I can do something that's already been done twice in the last year and a half, I did two of them. And they can't touch me. (Laughs) I know I can do it, Brad."

Luskin understood that those recordings were potentially devastating evidence against his client and knew that perhaps the only way he could keep Ducic off of death row was to discredit Weiss during cross-examination.

So Luskin began his cross-examination by trying to demonstrate that Weiss had a lot to gain by cooperating with authorities. Specifically, while Weiss was working with prosecutors, he was arrested for a DUI found with a crack pipe. Kasaris intervened to keep him out of jail.

After more than three days of Luskin's cross-examination, Weiss checked into the hospital with internal bleeding. The judge gave the prosecution the option of putting on their remaining witnesses while the court waited for Weiss to recover. If the defense could not finish their cross-examination of Weiss, in all likelihood the judge would have to declare a mistrial.

Final Witnesses Testify

In Weiss' absence, the state called their remaining witnesses. Like Weiss, both Edward Farrell and Kenny Frost cut deals with the prosecution to testify against Ducic in return for reduced sentences.

Farrell testified that while they were in prison together, Ducic told him about both murders and how he was planning on continuing to fool the authorities. Frost testified that Ducic told him to steal Ehrke's guns and credit cards both before and after his death.

During Luskin's cross-examination, Frost did help to substantiate the defense's assertion that Ducic was known for exaggerating and lying.

"I didn't listen to half of what Mark was talking about ... 'cause I knowed [sic] he was putting on airs. He just wanted to be bigger than what he was," Frost told the court.

The following week, Weiss returned to court. Luskin finished his cross examination and the state rested its case.

Since the burden of proof rested with the prosecution, the defense was not required to present a defense and the defendant was not required to testify. Ducic and his attorneys decided not to present a defense.

Closing Arguments

The attorneys now had one more chance to convince the jury of Ducic's guilt or innocence. The prosecution and defense were allotted an equal amount of time to present a summation of their cases to the jury.

Kasaris focused his closing arguments on Weiss's testimony and the audio recordings. He asserted that Ducic's recorded conversations about the murders "aren't stories. They are reality."

During the defense's closing statements, Luskin addressed the weakness of Weiss' testimony.

He said, "Brad, while on crack cocaine, heard what he wanted to hear, told these guys what they wanted to hear — that Ducic was a dealer in guns, he was a Hell's Angel, he had everything and he killed two people."

After the closing arguments, Judge McDonnell read instructions to the jury about how they were to decide their verdict and then sent them in to the jury room to begin deliberations.

To read the jury instructions, click here.

To find out what went on during the jury's deliberations, watch Part 1 of In the Jury Room: State of Ohio vs. Mark Ducic on Tuesday at 10 p.m. ET on ABC. Part 2 airs on Wednesday at the same time.