The Batavia, Ohio, attorney representing Ohio Division of Wildlife chief David Graham is seeking dismissal in Brown County Common Pleas Court of the two felony charges brought against the state official.
Attorney Gary A. Rosenhoffer says the indictment against his client “...relies solely upon an investigation that was conducted by the Office of the Ohio Inspector General (OIG)...”
Rosenhoffer filed the document on April 29 with another similar motion filed a few days later.
Also filing a similar motion today was Michael Cassity, attorney for James Lehman, the Wildlife Division law enforcement administrator and one of the defendants.
Rosenhoffer argues that such dependence abused Graham’s Fifth Amendment rights against self-incrimination. That is because the Wildlife Division chief had no alternative but to cooperate with the Inspector General.
To do otherwise, Rosenheoffer argues in his petition, Graham could have faced being fired by not cooperating.
“...The public employee’s choice between asserting the Fifth Amendment privilege or answering questions under the threat of discipline and/or prosecution is no choice as it places the employee ‘between the rock and the whirlpool,’” Rosenhoffer says in his petition.
“... the prosecution has the burden of proving affirmatively that the proposed evidence is derived from a legitimate source wholly independent of the compelled testimony.”
Graham and Lehman are charged with one count each of obstructing justice and one count of complicity of obstructing justice. Both are fifth-degree felonies.
The indictment against Graham, Lehman and four other Wildlife Division officials stems from an alleged incident in which the state wildlife officer assigned to Brown County - Allan Wright - was said to have allowed a South Carolina wildlife officer to use his Ohio address in order to obtain an Ohio hunting license on Nov. 5, 2006.
It is alleged that Graham, Lehman and three of the other high-ranking Wildlife Division officials should have handled the Wright incident differently as a criminal matter and not as an administrative matter that resulted in a verbal reprimand for Wright.
Cassity said he and Rosenhoeffer “pretty much cite the same cases” in their parallel motions.
“Gary and I have been working on this together; as have the other attorneys. We’re all on the same page. (And) if the court doesn’t dismiss then we have also filed a motion for the courts to determine if the evidence should be suppressed; in other words not have admitted as evidence in trial,” Cassity said.
Cassity said he believes that Jessica A. Little - the Brown County prosecutor who brought the charges - “simply made a mistake.”
“I disagree with the indictments. I feel the motion is on sound legal ground,” Cassity said.
The next pre-trial court hearing for Graham, Lehman and the other defendants is scheduled for May 17 where the dismissal motions may be considered.
Little said she believes the defense attorney’s efforts to dismiss the charges are a stretch, however.
“I don’t believe (the arguments are) applicable in these cases. It is too broad of an interpretation. For that reason I’ll be filing a memorandum opposing the motions to dismiss,” Little said.
Little said also that it is her belief that the defendants must be present at the May 17 hearing.
“It wouldn’t surprise me if some of these issues end up in the court of appeals,” Little said.
- Jeffrey L. Frischkorn