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Tuesday, Sept. 29, 2009
State of Ohio v. Anthony Jackson, Case no. 2008-1499
5th District Court of Appeals (Stark County)
State of Ohio v. Raynell Robinson, Case nos. 2008-1942 and 2008-2170
3rd District Court of Appeals (Union County)
State of Ohio v. James C. McCausland, Case no. 2008-2415
12th District Court of Appeals (Butler County)
Toledo Bar Association v. John G. Rust, Case no. 2009-1171
Lucas County
Allen County Bar Association v. Christi Brown, Case no. 2009-1230
Does Immunity of Forced Self-Incriminating Statement Bar Prosecutor from Pretrial Review of Statement?
State of Ohio v. Anthony Jackson, Case no. 2008-1499
5th District Court of Appeals (Stark County)
ISSUE: In a 1967 decision, Garrity v. New Jersey, the U.S. Supreme Court ruled that a police department or other public employer investigating alleged employee misconduct may force an employee to answer questions that might incriminate him or face firing; but no information obtained through such a coerced statement can later be used in a criminal proceeding against him. In this case, the Supreme Court of Ohio is asked to decide whether Garrity and subsequent court decisions bar a prosecutor who is pursuing criminal charges against a police officer only from presenting evidence to a grand jury that was obtained through the officer’s immunized statement, or if Garrity and its progeny also bar a prosecutor from using information obtained through the officer’s immunized statement in any way to help the state prepare its case against the officer.
BACKGROUND: While he was on paid administrative leave following an off-duty DUI violation, Canton police officer Anthony Jackson was cited by officers in a nearby township for illegal possession of a firearm in a liquor permit premises. After the firearm charge was submitted to a grand jury, but before an indictment was issued, Jackson was ordered by Lieutenant David Davis of the Canton Police Department’s internal affairs unit to appear at an internal police department proceeding and answer sworn questions about his conduct or face firing. After he was given a Garrity advisement that no information obtained through his compelled statement to internal affairs would be used against him in a criminal proceeding, Jackson answered questions about his conduct relative to the firearm incident. In his immunized statement, Jackson identified two persons who had been witnesses to the firearm incident and provided other potentially self-incriminating information. Shortly thereafter, Davis interviewed and obtained statements from both persons identified by Jackson as witnesses to the firearm incident. Neither of those persons had previously been contacted or questioned by the township police in connection with the firearm charge.
Several weeks later, the Stark County prosecutor’s office presented evidence to a grand jury that resulted in the issuance of an indictment against Jackson on the firearm charge. One of two witnesses who gave testimony before the grand jury was the township police officer who filed the firearm charge against Jackson. The other was Lieutenant Davis. During subsequent pretrial proceedings before the Stark County Court of Common Pleas, Jackson’s attorney discovered that the prosecutor was in possession of the Canton Police Department’s internal affairs file, which included a full transcript of Jackson’s immunized statement and the statements of the two witnesses Jackson had identified in that statement.
Jackson filed a motion seeking permanent dismissal of the firearm charge against him on the basis that the state had used information obtained through his coerced and immunized Garrity statement in pursuing a criminal charge against him. The trial court dismissed the indictment, holding that the prosecutor was not only barred from using information gained through Jackson’s Garrity statement as evidence before a grand jury or at trial, but was also barred from making any derivative, non-evidentiary use of such information, such as the identities of witnesses or the existence of potential rebuttal evidence, in preparing or prosecuting criminal charges against him.
The state appealed. On review, the 5th District Court of Appeals affirmed that the prosecutor’s pretrial access to the contents of Jackson’s immunized statement was a Garrity violation. A two-judge majority of the appellate panel ruled that, rather than permanently dismissing the firearm charge, the proper remedy was to reinstate Jackson’s indictment, remove the Canton police internal affairs folder and its contents from the state’s case file, and have the trial court appoint a new visiting prosecutor from another county to pursue the firearm charge based only on information independent of Jackson’s Garrity statement.
Both sides have appealed the portion of the 5th District’s decision unfavorable to them to the Supreme Court of Ohio.
Attorneys for the Stark County prosecutor’s office argue that the trial and appellate courts went beyond the requirements of the controlling court decisions when they found that mere possession of the police internal affairs file and a transcript of Jackson’s immunized Garrity statement by the prosecutor were enough to dismiss his indictment. They assert that those decisions only prohibit the state from directly or indirectly using the content of a defendant’s Garrity statement as evidence to obtain a criminal indictment against him, and do not preclude post-indictment access by prosecutors to information contained in such statements. In this case, they contend, the record shows that the firearm charge indictment against Jackson was based entirely on evidence independent of his Garrity statement, and therefore should be reinstated.
Attorneys for Jackson urge the Court to overrule the portion of the 5th District’s decision reinstating the firearm charge against him. They argue that both the U.S. Supreme Court’s decision in Kastigar v. United States (1972) and this Court’s 1990 ruling in State v. Conrad held that the state is barred from making “any use” of information obtained through a public employee’s coerced Garrity statement in pursuing a criminal charge against him, and that the penalty for making improper use of such a statement is permanent dismissal of the state’s indictment.
In this case, they assert, the trial court correctly found that Lieutenant Davis obtained otherwise-unavailable information by compelling Jackson either to make a self-incriminating Garrity statement or lose his job. Davis then not only gave testimony before the grand jury that was informed by Jackson’s statement, but subsequently turned over the entire police internal affairs file to the prosecutor, impermissibly allowing the state to use Jackson’s statement and witness statements that were obtained only after Jackson identified those witnesses to prepare its case against him and to anticipate and counter his defenses.
NOTE: Amicus curiae (friend of the court) briefs supporting the position of the Stark County prosecutor have been submitted by the Ohio Prosecuting Attorneys Association, Ohio Municipal League and Ohio Attorney General. Amicus briefs supporting the position of Anthony Jackson have been submitted by the U.S. and Ohio chapters of the Fraternal Order of Police, the Canton Police Patrolman’s Association and the International Union of Police, AFL-CIO.
Contacts
Kathleen O. Tatarsky, 330.456.7780, for the Stark County prosecutor’s office.
Bradley R. Iams, 330.452.6400, for Anthony Jackson.
Does Destroying a Cell Phone Being Used to Summon Aid in Emergency Constitute ‘Disrupting Public Service?’
State of Ohio v. Raynell Robinson, Case nos. 2008-1942 and 2008-2170
3rd District Court of Appeals (Union County)
ISSUE: Does the destruction of a single, private telephone while it is being used to call 911 violate the state law that prohibits “disrupting public services” by substantially impairing the ability of police or other emergency services personnel to respond to an emergency?
BACKGROUND: Raynell Robinson of Marysville was convicted of the fourth-degree felony of disrupting a public service in violation of R.C. 2909.04(A)(3) for seizing and smashing a personal cell phone that was being used by his nephew, Antonio Robinson, to summon emergency assistance after Raynell had assaulted Antonio with his fists following a late-night confrontation between the men.
On review, the 3rd District Court of Appeals reversed the trial court and vacated Robinson’s conviction based on its determinations that: 1) the legislative intent underlying the disrupting public services statute was to prohibit more wide-ranging conduct than tampering with or destroying a single private telephone; and 2) even if destroying a single phone could qualify as a violation of the statute, the state had not proved that Raynell Robinson’s conduct had “substantially impaired” the ability of emergency personnel to respond to the aborted 911 call and provide medical care to his nephew. The 3rd District subsequently certified that its ruling on the applicability of R.C. 2909.04(A)(3) to the destruction of a single phone was in conflict with rulings on the same point of law by the 2nd, 5th and 8th District courts of appeals. The Supreme Court agreed to review the case to resolve the conflict among appellate districts.
Arguing for the state, attorneys from the Union County prosecutor’s office urge the Court to adopt the holdings of the 2nd, 5th and 8th Districts that a defendant’s intentional destruction or disabling of a telephone while it is being used to call 911 meets both criteria for the offense of disrupting a public service, which are that: 1) the defendant’s conduct involved “knowingly ... damaging or tampering with ... any property;” and 2) doing so in such a way as to “substantially impair the ability of law enforcement officers, firefighters, rescue personnel, emergency medical services personnel or emergency facility personnel to respond to an emergency or to protect and preserve any person or property from serious physical harm.”
In this case, they point out, Antonio Robinson had already reached a 911 operator and reported that he been assaulted and needed help, but had not been able to provide a street address before his uncle seized and smashed his phone, resulting in a delay of approximately 10-15 minutes while police and medics dispatched to the general location were able to find Antonio and provide protection and medical treatment. They argue that, because emergency responders may need to call back to obtain directions to a victim’s location, or rely on a continuing phone signal to locate the victim, destruction of a single phone can and does “substantially impair” their ability to respond promptly and effectively to a 911 caller.
The Ohio attorney general’s office has submitted an amicus curiae (friend of the court) brief in support of the prosecutor’s position, and has been granted permission to share the time allocated to the state for oral argument.
Attorneys for Raynell Robinson urge the Court to affirm the 3rd District’s holding that, when the statutory language at issue in this case is read in context with the rest of R.C. 2909.04, it is clear that the legislative intent behind that law is to prohibit large-scale destruction or tampering with public communications infrastructure, not to address the destruction or interference with a single private cell phone. They also contend that, even if the law is interpreted to address a single cell phone, Robinson is still entitled to acquittal based on the facts of this case because trial testimony did not establish that his actions “substantially impaired” paramedics, who were already on their way to the scene, from finding and treating Antonio within a few minutes, or that the brief delay that may have resulted from his actions made any difference in the treatment they provided to Antonio for his non-life threatening injuries.
Contacts
Melissa A. Chase, 937.645.4190, for the Union County prosecutor’s office.
Benjamin C. Mizer, 614.466.8980, for the Ohio attorney general’s office.
Stephen P. Hardwick, 514.466.5394, for Raynell Robinson.
Does Omission of Closing Argument in Bench Trial Violate Defendant’s Right to Due Process of Law?
State of Ohio v. James C. McCausland, Case no. 2008-2415
12th District Court of Appeals (Butler County)
ISSUE: At the conclusion of a criminal case that is tried before a judge, does the judge’s failure to affirmatively offer the defendant an opportunity to present a closing argument before announcing the court’s judgment constitute reversible error where the defendant did not request a closing argument or enter an immediate objection to the omission of a closing argument?
BACKGROUND: James McCausland was stopped by a highway patrol trooper and charged with speeding, OMVI, and refusal of a chemical test with a prior OMVI conviction within the preceding 20 years. He originally requested a jury trial, but subsequently waived a jury and agreed to a bench trial before the Butler County Court, at which he was represented by an attorney. At trial, the state called one witness, the arresting officer, and the defense presented only McCausland’s testimony on his own behalf. The state then re-called the trooper to respond to portions of McCausland’s testimony.
At the conclusion of testimony, the trial record indicates that the judge paused briefly and then announced his judgment that McCausland was guilty on all three counts without asking either the prosecutor or defense counsel if they wished to make a closing statement. McCausland’s attorney did not request an opportunity to present a closing argument, and did not enter an objection to the judge’s omission of closing arguments before proceeding to judgment.
McCausland subsequently appealed his convictions to the 12th District Court of Appeals, arguing that he was entitled to a new trial because the judge’s failure to allow a closing summation violated his constitutional right to have his attorney fully argue the legal merits of his case before the court entered judgment against him. The 12th District ruled that, in the absence of an affirmative request by a defendant or an immediate objection to the omission of closing arguments, the trial court’s omission did not constitute reversible error. The court of appeals noted, however, that while several other Ohio appellate districts have issued similar rulings, four appellate districts have held that the omission of a closing argument does violate a defendant’s constitutional due process rights and requires a new trial. The Supreme Court has agreed to review the case to resolve the conflict among appellate districts.
Attorneys for McCausland cite the U.S. Supreme Court’s 1975 decision in Herring v. New York, in which it held that a trial court’s refusal to allow a defendant to present a closing argument violated the defendant’s constitutional due process rights. They note that several Ohio courts of appeals have interpreted Herring as requiring reversal of criminal convictions where the right to make a closing statement whether or not the defendant affirmatively requested a closing argument or entered an immediate objection.
The Butler County prosecutor’s office responds that Herring addressed a New York law that gave trial court judge’s discretion to deny a defendant’s specific request to make a closing argument at the conclusion of a bench trial. They argue that the facts of this case, in which McCausland not only did not request a closing argument but also failed to object to its omission, distinguish it from Herring.
They urge the Court to adopt the 12th District’s interpretation that when a defendant makes no request for a closing summation and enters no objection to its omission, he waives the right to raise that mistake on appeal absent a showing that it was “plain error,” i.e., an error so significant that it changed the outcome of the trial. Because McCausland’s trial involved simple and straightforward legal issues and testimony from only two witnesses, they assert, the absence of a closing argument by his attorney clearly would not have changed the trial judge’s conclusion that he was guilty as charged.
Contacts
Michael A. Oster, 513.887.3474, for the Butler County prosecutor’s office.
Matthew T. Ernst, 513.579.9500, for James McCausland.
Attorney Discipline
Toledo Bar Association v. John G. Rust, Case no. 2009-1171
Lucas County
The Board of Commissioners on Grievances & Discipline has recommended that a six-month suspension, with the full term of suspension stayed on conditions, be imposed against the license of attorney John G. Rust of Toledo for filing a wrongful death lawsuit in the name of a person who was not his client and who had not authorized Rust to initiate a court action on his behalf. The disciplinary board also recommended that Rust, who is 92 years of age and has been diagnosed with hearing problems and a minor cognitive disorder, serve a term of probation during which he undergo an evaluation by the Ohio Lawyers Assistance Program and participate in any programs or treatments that are recommended.
Rust has entered objections to the board’s findings and recommended sanction, arguing that his conduct did not violate disciplinary rules because he was attempting to file suit in the name of the estate of a deceased woman on behalf of the woman’s only heir, but was prevented from doing so by a court-appointed administrator of the woman’s estate who refused to authorize a court action. Rust argues that because the administrator was only a nominal representative of the decedent’s estate, while the real party in interest in the wrongful death claim was his client, the decedent’s son, Rust had no alternative except to list the administrator as a party to the suit in order to obtain the jurisdiction of the trial court for his client’s claim before the statutory deadline for doing so expired.
The Toledo Bar Association, which brought the disciplinary complaint against Rust, has filed a response to Rust’s objections. The association does not oppose the stayed license suspension recommended by the board, but notes that Rust continues to dispute the impropriety of filing a court action in the name of a party without that party’s authorization, and urges the Court to make clear in its decision that such conduct is clearly prohibited by the Rules of Professional Conduct.
Contacts
Jonathan B. Cherry, 419.242.4969, for the Toledo Bar Association.
Richard M. Kerger, 419.255.5990, for John G. Rust.
Attorney Discipline
Allen County Bar Association v. Christi Brown, Case no. 2009-1230
The Board of Commissioners on Grievances & Discipline has recommended that the law license of Lima attorney Christi Lee Brown be suspended for one year, with the full term of suspension stayed on conditions, for neglecting the cases of two clients, failing to respond to their attempts to communicate with her and failing to make timely disbursement of funds to which those clients were entitled. The proposed conditions for staying her suspension include completion of continuing education courses addressing office organization and time management and participation in a two-year mentoring program in which her law practice will be monitored by an experienced local attorney.
Brown has filed an answer accepting the disciplinary board’s findings of fact and conclusions of law, but urging the Court to impose a public reprimand rather than a stayed license suspension as the appropriate sanction for her misconduct. In support of the lesser penalty, Brown points out the mitigating facts that she has no prior disciplinary infractions, did not act with a selfish motive, made full restitution to the two clients whose cases she neglected and has already associated in an office-sharing arrangement with a more experienced attorney.
The Allen County Bar Association responded to Brown’s objection by noting that, prior to the filing of the client grievances that resulted in this discipline case, the association had become aware of time and office management problems in Brown’s law practice and had offered her the assistance of a mentor attorney, which she failed to take advantage of after a single meeting. In light of Brown’s statements during her hearing and history of difficulties in managing her practice, the association urges the Court to impose the stayed suspension and conditions recommended by the board.
Contacts
Robert B. Fitzgerald, 419.227.5858, for the Allen County Bar Association.
Alan M. Petrov, 216.522.1073, for Christi L. Brown.
These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.
Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.