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Wednesday, May 28, 2014

State of Ohio ex rel. The Cincinnati Enquirer v. Hon. Michael J. Sage et al., Case no. 2013-0945
Twelfth District Court of Appeals (Butler County)

Nicholas Castagnola v. State of Ohio, Case no. 2013-0781
Ninth District Court of Appeals (Summit County)

In the Matter of B.C., Case nos. 2013-1932 and 2014-0181
Second District Court of Appeals (Clark County)

Cincinnati Bar Association v. Geoffrey P. Damon, Case no. 2013-1984

Is Outbound Call Made by 911 Operator Public Record?

State of Ohio ex rel. The Cincinnati Enquirer v. Hon. Michael J. Sage et al., Case no. 2013-0945
Twelfth District Court of Appeals (Butler County)

From Michael Gmoser, Butler County prosecuting attorney, and Butler County Common Pleas Judge Michael J. Sage on appeal:

From the Cincinnati Enquirer on cross-appeal:

On June 17, 2012, a 911 operator for the Butler County Sheriff’s Office answered a call from a distressed woman who said there had been an accident involving her husband and he was not breathing. She asked for an ambulance and hung up.

The operator, Debra Rednour, dispatched the St. Clair Township Fire Department and sheriff’s deputies to the residence. Because a man was not breathing and to give more information to the officials who would be the first responders, Rednour called back the number from which the 911 call originated. No one picked up, so she called again. That time, a male voice answered. During the call, which was recorded, Rednour identified herself as the Butler County Sheriff’s Office, told the person she was sending help, and asked what was going on.

The person who answered the phone identified himself as “Michael Ray.” He said he had “snapped” and had stabbed his stepfather after his stepfather got mad after catching Ray drinking some of his alcohol.

A reporter from the Cincinnati Enquirer sent a public records request to the sheriff’s office later that day asking for a copy of the inbound 911 call. The Butler County Prosecuting Attorney, Michael T. Gmoser, denied the request, but the sheriff’s office gave the newspaper a copy of the recording two days later. The Enquirer then made another request for all 911 calls to or from the Butler County dispatchers on June 17 around the time of the first call. Gmoser responded that the two outbound calls were not public record. When the paper’s legal counsel made the same request, Gmoser released the first outbound call, which had gone unanswered.

In the criminal case that had begun against Ray, the prosecutor asked the court for a protective order to block the release of the recording of the second outbound call.

Judge Michael J. Sage of the Butler County Court of Common Pleas decided that, even if the call was public record, Ray’s right to a fair trial outweighed the public’s interest in the statements made during the call. He also determined that a call transcript, obscuring or deleting certain parts of the call (redaction), and moving the location of the trial were not reasonable alternatives to blocking the release of the recording.

The Enquirer asked the Twelfth District Court of Appeals for a writ of mandamus to force the release the second outbound recording. Several days later, the newspaper also asked the court to issue an order prohibiting the judge from enforcing the protective order.

A few months after, the judge amended the order and released the recording to the media, including the Enquirer, just before it was to be played for the jury in open court. (Ray was subsequently convicted of murdering his stepfather.)

In June 2013, the Twelfth District granted the Enquirer’s requestfor the recording’s release and awarded statutory damages to the newspaper. However, the court denied the request for a writ of prohibition against the judge and refused to grant attorney’s fees to the Enquirer.

Gmoser and Sage appealed to the Ohio Supreme Court, which agreed to consider the case. The Enquirer also filed a cross-appeal, contesting parts of the appellate court’s decision.

The second outbound call
Attorneys for the Butler County officials argue that an Ohio statute defines 911 systems in a way that “clearly requires” an individual to call 911 and ask for emergency services. They contend that the second outbound call was not a 911 call because it has none of these required elements.

Butler County’s attorneys also cite the Ohio Supreme Court case State ex rel. Cincinnati Enquirer v. Hamilton Cty. (1996). They assert that the court stated in that opinion that 911 calls “‘are always initiated by the callers.’” They argue that this further supports the idea that Rednour’s outbound call was not a 911 call, so it cannot be a public record.

Because Rednour is an employee of a sheriff’s department, and her questions during the call with Ray turned to establishing what had happened in the crime, the conversation became a police interrogation, the attorneys claim.

“[T]he recording of the Outbound Call was no longer simply compiling information relayed by a person describing an emergency situation, but rather was recording a defendant’s statements, prompted by questions from the dispatcher, about past events establishing the defendant’s role in his step-father’s murder,” the prosecutor’s attorneys wrote in their brief to the court. “Ray’s responses to Rednour’s questions, including ‘what happened’, were testimonial in nature rather than the non-testimonial statements which are typical of the 9-1-1 calls described by the Supreme Court in Hamilton County as being public records per se.”

They also dispute the Twelfth District’s conclusion that the second outbound call was a “continuation” of the first 911 call, arguing that no case law supports this view and that Ray did not speak to Rednour during the first call so their later phone conversation could not be a continuation of the initial call.

The attorney for the Enquirer maintains that the court is not required to decide whether the second outbound call was a 911 call, but rather whether it was contained on a 911 tape or recording. Based on the court’s decision in Hamilton County, if a recording is made “as a result” of a call to 911, the recording is then public record, he argues. He asserts that the court’s reasoning means that a recording made as a result of a 911 call can never be a confidential investigatory record or a trial preparation record and exempt from public disclosure, as Butler County’s attorneys claim.

The newspaper’s attorney asserts that the callback procedure followed by Rednour is encompassed in the statutory definitions of 911 systems. Also, he argues that the questioning by Rednour during the call with Ray were not a police “investigation,” and Ray’s statements made during the emergency are not exempt as a “confidential law enforcement investigatory record.” He further maintains that the 911 call made in a 2006 U.S. Supreme Court decision (Davis v. Washington) cited by Butler County’s counsel was in fact a callback, too. And he contends that the court in that case ruled the statements made during that callback were not made during an investigation.

“Moreover, in [the Ohio Supreme] Court’s recent [State ex rel.] Miller [v. Ohio State Hwy. Patrol] decision, the Court observed … that 9-1-1 recordings never constitute ‘specific investigatory work product’ so as to fall within the confidential law enforcement investigatory record exemption,” he wrote in his brief to the court.

The protective order
In State ex rel. Beacon Journal Publishing Co. v. Bond (2002), the Ohio Supreme Court adopted a test for balancing a defendant’s right to a fair trial with the media’s right to access. The Twelfth District ruled in this case that the common pleas court’s protective order did not meet the requirements of Bond and two earlier U.S. Supreme Court cases. The attorneys for Gmoser and Sage counter that trial judges can expertly apply the balancing test, and specific findings showing that a defendant is likely to be harmed by the release of the record are not required by the law.

While Butler County’s attorneys concede that the 911 recording was admissible and would be (and was) presented to a jury, they wrote that the appellate court had an unconstitutional rationale that “any pretrial publicity that contains admissible evidence in a criminal case can be pre-disclosed to the public prior to the commencement of trial because the citizens who will become the jurors on the case will hear it anyway at trial.” They conclude that Judge Sage properly applied the relevant balancing test and determined that the release of the 911 recording would impede Ray’s right to a fair trial.

The Enquirer’s attorney counters that the judge did not have enough evidence to conclude that Ray’s constitutional right to a fair trial would be violated by the release of the recording. He claims the only evidence considered by the judge was the second outbound call’s content.

The judge also did not consider sufficient alternatives to blocking the recording’s release – such as effectively questioning potential jurors, delaying the trial, changing the location of the trial, and providing specific instructions to the jury, the attorney argues.

911 calls are per se public records
Butler County’s attorneys assert that the rule under Hamilton County that 911 calls are inherently public records does not allow courts to consider specific situations.

“A totality approach or a balancing test is a better avenue to find justice, and this Court should reconsider the appropriateness of this as it relates to 9-1-1 calls,” they wrote. “This is especially true where the interest of the safety and privacy rights of Ohio’s citizens and corporations are frequently at issue. … Either having privacy or having the ability to summon emergency services should not be an ‘either-or’ proposition in Ohio. The per se rule established by this Court over fifteen years ago in Hamilton County ... should be lifted.”

The newspaper’s attorney responds that Butler County’s attorneys present no evidence that because 911 calls are public records citizens are not calling 911 in emergencies out of concern for their privacy. He adds that the Ohio General Assembly has the power to create a privacy exemption to the public records law if it determines that concern outweighs the importance of open government, yet it has not done so.

Other arguments
The Enquirer’s attorney asserts in the paper’s cross-appeal that Judge Sage improperly issued the protective order prohibiting the release of the 911 recording. This issue should have been resolved through the methods established in the public records law, he concludes. Butler County’s counsel respond that the prosecutor had a constitutional duty to request the order and to protect the integrity of the justice system.

On the issue of statutory damages, Butler County’s attorneys contend that Gmoser should not have to pay the damages to the Enquirer because the newspaper did not make its initial public records request in accordance with Ohio’s public records law. They also conclude that Gmoser reasonably believed the recording was exempt from release and preserved Ray’s right to a fair trial. The Enquirer, on the other hand, argues that it should be awarded attorney’s fees because it has met the public-benefit requirement in the public records law.

An amicus curiae brief supporting the Cincinnati Enquirer’s position has been submitted by the Ohio Coalition for Open Government.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Michael Gmoser: Michael Oster, 513.887.3474

Representing the Cincinnati Enquirer: John Greiner, 513.629.2734

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Was Search of Suspect’s Computer an Unconstitutional Search and Seizure?

Nicholas Castagnola v. State of Ohio, Case no. 2013-0781
Ninth District Court of Appeals (Summit County)


In the course of investigating incidents of vandalism and retaliation that had occurred against the Twinsburg city prosecutor, police obtained a search warrant for the residence of suspect Nicholas Castagnola. The search warrant included authorization to search various items in the house, including computers. Police removed two computers from the house, and these were sent to the Bureau of Criminal Investigation (BCI). A computer forensic examiner at BCI retrieved the image files on the computer, and found files she believed to contain child pornography. She contacted the Twinsburg Police Department to obtain a second search warrant, and on the basis of this warrant, BCI made a complete copy of the computer’s hard drive for analysis, which led to the discovery of child pornography.

A jury found Castagmola guilty of two counts of retaliation, one count of criminal damaging, one count of vandalism, one count of criminal trespass, and one count of possession of criminal tools. In a separate case, Castagnola was also found guilty of ten counts of pandering sexually oriented matter involving a minor.

Castagnola appealed to the Ninth District Court of Appeals, alleging error in the trial court’s denial of his motion to suppress the evidence collected from his computer; the failure to merge the counts of retaliation and criminal damaging, and the counts of retaliation and vandalism, as allied offenses; and the failure to make the findings necessary to impose consecutive sentences. He also contended that the evidence on the sexual pandering counts was insufficient. The Ninth District rejected the arguments regarding the insufficiency of the evidence and the denial of the motion to suppress. However, the appeals court found that the trial court had not engaged in the proper analysis to determine whether the various offenses were allied, and reversed and remanded the case for the trial court to make that determination. Castagnola appealed to the Ohio Supreme Court, which agreed to hear the case.

Among other arguments, attorneys for Castagnola assert that the search of his computer was not necessary because police and prosecutors had already obtained more than sufficient evidence to pursue the vandalism and retaliation charges, and the search warrant for his home and subsequent search of his computer violated his right to privacy and the Fourth Amendment protection against unreasonable search and seizure.

“This case requires this Court to address the balance between the right of privacy against government intrusion and the legitimate needs of law enforcement, in the context of the ubiquitous personal computer,” Castagnola’s attorneys write in their merit brief. “The Fourth Amendment has two critical components: it demands that the affidavit for a warrant establish probable cause for the search and seizure, and that the warrant be particular in describing what can be searched and seized. The search here failed in both respects: the affidavit failed to establish probable cause to seize the computer, and the warrant lacked the particularity necessary to ensure that any search of the computer was limited to the reasons for which it was sought. The inevitable result was a wholesale invasion of Mr. Castagnola’s privacy.”

Attorneys for the state counter that Castagnola did not challenge the particularity requirement of the warrant in either the trial court or the court of appeals, and therefore the Ohio Supreme Court should not have accepted this question for review. Still, they argue that the affidavit and warrant did describe with particularity the items to be sought.

“The affidavit and warrant identify the offenses of retaliation, criminal trespassing, criminal damaging, and possession of criminal tools, identifies the items of property for which officers are to search, and indicates that the listed items are connected with the aforementioned offenses,” attorneys for the state wrote in their merit brief. “Therefore, the warrant can reasonably read to restrict seizure to items connected with retaliation, criminal trespassing, criminal damaging, and possession of criminal tools. As such, the warrant in this case informed law enforcement officers that they were to search only for items connected to the crimes of retaliation, criminal trespassing, criminal damaging. Since the warrant was limited to particular crimes, the warrant did not authorize a broad, wide-reaching search such that would improperly permit officers to search for anything.”

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Nicholas Castagnola: Russell S. Bensing, 216.241.6650

Representing the state of Ohio from the Summit County Prosecutor’s Office: Heaven Dimartino, 330.643.7459

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Does Appellate Rule Allowing Delayed Appeals Extend to Termination of Parental Rights Cases?

In the Matter of B.C., Case nos. 2013-1932 and 2014-0181
Second District Court of Appeals (Clark County)


Editor’s Note: The Supreme Court determined that a conflict exists between two appellate districts on these issues and ordered that the certified-conflict case (2014-0181) be consolidated with the appeal from Cassidy Campbell (2013-1932) for oral arguments.

This case involves a boy, B.C., who was born to Cassidy Campbell in May 2010. (B.C.’s father is known, but the child’s father does not have contact with him.) B.C. tested positive at birth for THC (tetrahydrocannabinol), a chemical found in marijuana, and also was diagnosed with Pierre Robin Syndrome, as well as a cleft palate. In October 2011, Family and Children Services of Clark County (FCSCC) filed a complaint in Clark County Juvenile Court for temporary shelter care custody of the child, who was nearly 18 months old.

FCSCC originally became familiar with B.C. and his mother when it received a referral for assistance for Campbell. A second referral was received after concerns that Campbell had overdosed and the child was not properly supervised. Arrangements were made for Campbell and her son to live in a transitional housing facility called Hannah House, but because she did not participate in its program, Hannah House removed them. FCSCC filed for temporary custody when social workers determined that Campbell was unable to provide basic care or medical treatment for the child.

In December 2011, the juvenile court ordered B.C. to be placed in temporary custody of the children services agency. When B.C. lived with his first foster family, Steve and Susan Franko became acquainted with the child and became interested in assisting with his care. In October 2012, the Frankos petitioned to become a party in B.C.’s custody case and filed for legal custody of B.C. FCSCC opposed the Frankos’ motion and filed for permanent custody of the child. The juvenile court held a hearing in December 2012. The Clark County Juvenile Court ruled that while the Frankos were good people and well intentioned, they did not establish themselves as meriting status as a party to the case. Further, Campbell was incarcerated in the county jail at the time and was not permitted to attend this hearing. Campbell maintains that her appointed counsel did not inform her of the Frankos’ motion or interest in her son.

In February 2013, Campbell, on the advice of counsel, acknowledged and agreed that she failed to complete her case plan and that giving permanent custody to FCSCC “would enable the child to obtain stability and predictability.” The juvenile court approved FCSCC’s request for permanent custody of B.C.

Campbell contends that she originally did not file an appeal because she was told she had no appealable issues. Her current attorney, however, stated in the brief to the Supreme Court that Campbell later discovered, after the time for appeal expired, “that information was withheld from her by her appointed counsel that would have had a direct impact on her decision to relinquish her rights.”

In August 2013, Campbell asked the court if she could file a delayed appeal, which was overruled by the Second District Court of Appeals when it determined it lacked jurisdiction to hear the case.

Delayed appeals
The Second District notified the Supreme Court that its decision in this case is in conflict with In re Westfall Children (2006), in which the Fifth District Court of Appeals permitted the filing of a delayed appeal from a final judgment terminating a parent’s rights. The Ohio Supreme Court agreed and combined the conflict case with Campbell’s appeal of the appellate court’s decision for oral arguments.

Rule 5 of the Ohio Rules of Appellate Procedure (App.R. 5) permits a motion for delayed appeal beyond the requisite 30-day expiration date in three types of cases: criminal proceedings, delinquency proceedings, and serious youthful offender proceedings. In its decision, the Second District first noted that the trial court’s decision was a final order. The court further explained that Campbell did not file her appeal within the allowed 30 days from service of the judgment notice, which caused the appeals court to determine “there is no authority for filing a notice of appeal in a juvenile case regarding the termination of parental rights after the expiration of the time prescribed by App.R. 4(A).”

Campbell maintains that App.R. 5 does extend to cases involving the termination of parental rights and asks the Supreme Court to “extend the delayed appeal provisions of App.R. 5 to cases involving the termination of parental rights and privileges.” FCSCC contends Campbell’s reasons are without merit and should be rejected.

Due process
Campbell asserts that the U.S. and Ohio Supreme Courts have established the “right to raise one’s children is an ‘essential’ and ‘basic civil right,’” as cited In re Murray (1990) and Stanley v. Illinois (1972). In 1991, the Third District Court of Appeals concluded that “[p]ermanent termination of parental rights has been described as the family law equivalent of the death penalty in a criminal case.” Campbell contends that her due process rights have been violated because her counsel advised her to relinquish her parental rights without knowing all the facts, including the interest of the Frankos and their relationship to her son. Noting that criminal cases have a “safeguard” of delayed appeals, she argues the “same standards should apply in cases terminating parental rights as the impact upon the parties is just as substantial.”

FCSCC maintains that Campbell’s claims of due process violations are without merit. Using the “three distinct factors” set out in the U.S. Supreme Court decision Mathews v. Eldridge (1976)risk of error, private interests, and government interests –the agency asserts that due process does not require extending a delayed appeal in termination of parental rights cases. Specifically, it argues, Campbell had “sufficient” time to appeal within the 30-day time period. Acknowledging the natural parent’s interest is significant, FCSCC also notes the child’s interest and the foster and/or adoptive parents’ interests as well.

“A delayed appeal is completely contrary to the best interest of the child,” attorneys for the agency write in their brief to the court. “Further, a child who needs finality and stability cannot achieve these goals if a delayed appeal may be allowed months, or even years, after the juvenile court’s order terminating parental rights.” Citing Lehman v. Lycoming Cty. Children’s Svcs. Agency, a 1982 U.S. Supreme Court decision, FCSCC contends that “[t]he State’s interest in finality is unusually strong in child-custody disputes.”

Appeal of court order is moot
The child services agency points out that B.C.’s adoption was finalized in the juvenile court before Campbell filed her appeal. As a result, the agency maintains that the juvenile court lost jurisdiction over B.C., and the mother “cannot receive any relief if the judgment of the juvenile court is reversed.” Consequently, FCSCC asks the Supreme Court to dismiss the appeals as moot or as improvidently allowed and improvidently certified, or to affirm the judgment of the Second District Court of Appeals.

Campbell, however, disagrees that her appeals are moot and points out that R.C. 3107.16(B) provides one year for the appeal of an adoption. The one-year timeframe has not expired. In order to appeal the adoption, though, she must first be successful in her appeal of the juvenile court case, Campbell asserts.

An amicus curiae brief supporting the position of the Family and Children Services of Clark County has been submitted by Public Children Services Association of Ohio.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket (2013-1932 and 2014-0181).

Representing Cassidy Campbell: Linda JoAnna Cushman, 937.325.3022

Representing Family and Children Services of Clark County: Andrew Pickering, 937.521.1770

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Attorney Discipline

Cincinnati Bar Association v. Geoffrey P. Damon, Case no. 2013-1984

The attorney disciplinary board has recommended that Cincinnati attorney Geoffrey P. Damon be disbarred from the practice of law for misappropriating funds from his law firm, taking fees and advance payments (retainers) from clients and not doing the work for which he was hired, and keeping retainers for lawsuits that he should have known had no merit.

Damon joined the Cincinnati law firm Butkovich & Crosthwaite as a full-time associate in January 2009. As part of his employment agreement, Damon agreed that he would send all fees he collected from new client matters and ongoing work with clients to the firm. However, Damon did not turn over fees and retainers to the firm in multiple client matters. He was convicted of a felony in March 2013 for the theft, was sentenced to three years of community control, and was ordered to pay the firm about $60,000 in restitution. Following his conviction, the Ohio Supreme Court placed Damon on an interim suspension from the practice of law.

The Cincinnati Bar Association filed a complaint against Damon for several violations of the attorney conduct rules, including the theft. 

The Board of Commissioners on Grievances & Discipline explained in its report to the Supreme Court that Damon failed to provide an accounting of his time and expenses on his cases; charged excessive fees by not refunding unused portions of retainers; dismissed lawsuits without consulting with clients; did not inform clients about the status of their cases; and did not have a written fee agreement in a contingent-fee case.

The board noted that Damon agreed in his criminal case that he stole $84,000 from the law firm. However, the board stated that the exact amount of Damon’s theft is unknown because he did not keep records, he received some payments from clients in cash, and the $84,000 only accounts for Damon’s income in 2009 and does not include money he collected during the first seven months of 2010 when he was still employed by Butkovich & Crosthwaite. The board found that Damon felt no obligation to pay back fees he had not earned unless a client sued him. The board concluded Damon lacks remorse for his actions and the harm he has caused his clients and former employer, and it recommended that Damon be permanently prohibited from practicing law.

Damon has objected to the board’s findings and recommended sanction. In his objections to the court, Damon wrote that he understands his conduct deserves significant discipline, but he argues that disbarment is too severe based on similar disciplinary cases. He noted that he has been punished with a conviction and an interim suspension and asks the court to impose only an indefinite suspension so that he may, at some point, seek reinstatement.

He contends that he began paying back the law firm before any criminal prosecution or disciplinary hearing. While the board concluded that the amount he stole is unknown, Damon argues that he and the law firm settled on a final amount of restitution, and the firm was obligated to refund his clients using the restitution he has paid. He also asserts that he did not neglect his clients in their cases.

The bar association responded to Damon’s objections. It points out that Damon kept no records of his clients, the payments he received from clients, or the time he spent on cases, so the exact amount of his theft cannot truly be determined. The bar association notes several aggravating circumstances, including a pattern of misconduct, multiple offenses, harm to clients, and lack of remorse. Because the aggravating factors outweigh the mitigating, the association argues that Damon’s misconduct warrants disbarment.

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Representing Geoffrey P. Damon: Joseph Borchelt, 513.455.4014

Representing the Cincinnati Bar Association: Robert Hollingsworth, 513.852.8229

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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.