Tuesday, January 17, 2012

3rd Update: Prosector wins appeal against so-called "Brown County Five" state wildlife officals.

The Brown County prosecutor won an important legal victory today in a nearly two-year-old case involving five current and former top officials with the Ohio Division of Wildlife.

In a ruling announced today by the five-member 12th District Court of Appeals the five felony-indicted officials are not protected by the so-called “Garity Rule.”

This legal fiat protects certain government employees from testifying on matters if they believe doing so would jeopardize their jobs.

The defendants’ attorneys said the rule applied to their clients, a position accepted by Brown County Common Pleas Court judge Scott Gusweiler.

However, Brown County prosecutor Jessica A. Little took issue with that ruling and appealed Gusweiler’s opinion before the state’s 12th District Court of Appeals.

Little won her plea and said she’s “very pleased with the decision.”

The next step will be to place this matter back on the Brown County Common Pleas Court, Little said also.

“I hope we can get this disposed of quickly; let’s get a trial on the merits and come to a resolution,” Little said. “I’m hoping for a pre-trial hearing and then a trial (but) only the judge and the clerk knows that, but I would like to see it resolved as expeditiously as possible since it’s been around for so long. These are fifth-degree felonies so they’re the lowest degree of felony.”

Attorney Michael Cassity is representing James Lehman, who is currently the Wildlife Division’s law enforcement administrator and one of the officials charged by Little.

“We’re disappointed in the decision (but) I’ll have to talk with my client and see what are our options,” Cassity said. “We could go to the Supreme Court or go to trial.”

Looming large is what are the implications of this ruling on the status of the three indicted officials who are still employed by the Wildlife Division: Lehman, Todd Haines, and Michelle Ward-Tackett.

Carlo LoParo, communications director for the Ohio Department of Natural Resources, said the agency is “currently gathering further information to see what the actual status of the case.”

“We’re reviewing the decision, and based on that review we’ll make a determination as to what administrative actions need to be taken, if any,” LoParo said.
Loparo did say there is no deadline as to when the information collecting process is complete.

“It shouldn’t be very long, maybe in the next few days,” he said.

This is the text of 12th District Court of Appeal’s release on the subject:

“The Twelfth District Court of Appeals has reversed the decision of the Brown County Court of Common Pleas, suppressing the statements of employees of the Ohio Department of Natural Resources.

“Chief of the Division of Wildlife David Graham, Ohio Wildlife Assistant Chief Randy Miller, Human Resource Manager Michele Ward-Tackett, Law Enforcement Executive Administrator Jim Lehman, and District Manager Todd Haines were indicted on single counts of obstruction of justice and complicity to obstructing justice. Each was an employee of the Ohio Department of Natural Resources and was involved in an internal investigation into allegations that Wildlife Officer Allan Wright falsified a hunting license so that his out-of-state friend could obtain an Ohio hunting license.

“The matter was investigated by the Ohio Inspector General and each employee gave statements during an interview with the Inspector General that they believed Wright’s conduct was not criminal in nature and so they punished him according to administrative policies. The Ohio Inspector General wrote a report regarding Wright’s activities and the way the employees handled the Ohio Department of Natural Resources’ internal investigation, and gave the report to the Brown County
Prosecutor. The Prosecutor then decided to press charges.

“The defendants filed motions to exclude evidence of their statements, arguing that they were coerced by the Inspector General into giving their statements, and that the coercion was based on their belief that they would be fired if they did not cooperate with the investigation. The trial court agreed and suppressed the defendants’ statements.

“The state of Ohio appealed to the Twelfth District and argued that the trial court improperly suppressed the statements because the defendants gave their statements voluntarily and without threat of termination.

“Writing for the majority opinion, Judge Robin N. Piper found that the trial court erred in suppressing the statements because the defendants gave their statements voluntarily. Presiding Judge Stephen W. Powell agreed with the majority opinion. Judge Rachel A. Hutzel concurred in part dissented in part.

“The decision of the Twelfth District Court of reversed the decision of the trial court to suppress the defendants’ statements and sent the case back to the trial court for further proceedings.”

This story will be updated as additional information becomes available.

The text of this release is available through the court at: http://www.twelfth.courts.state.oh.us/Press/20120117%5BBrown%5BCA2010-10-016%20CA2010-10-017%20CA2010-10-018%20CA2010-10-019%20CA2010-10-020%5BState%20v.%20Graham%5B.pdf.

Jeffrey L. Frischkorn
Twiter: @Fieldkorn

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