Wednesday, May 29, 2013

2nd UPDATE to include prosecutor's comments: Ohio Supreme Court rules in favor of Brown County Five

In a unanimous decision released today, the Supreme Court of Ohio ruled the so-called “Brown County Five” did, in fact, see their rights regarding self-incrimination violated.

As a result, Brown County prosecutor Jessica A. Little said late this afternoon (May 29) that she intends to dismiss felony charges against the five former Ohio Division of Wildlife officials, each of whom were indicted in Brown County Common Pleas court more than three years ago.

These five Wildlife Division officials had been defendants a lengthy legal battle, claiming they were protected by the federal Garrity Rule.

This U.S. Supreme Court-baked legal claim protects civil servants from offering incriminating testimony during investigations by a political entity.

In this case the five defendants – former Wildlife Division chief David Graham, former assistant chief Randy Miller, former Wildlife Division law enforcement supervisor James Lehman, former agency human resources manager Michelle Ward-Tackett, and former supervisor for the Wildlife Division's District Five (Southwest Ohio) office Todd Haines – contended their Garrity Rule rights were violated by the Ohio Inspector General's office.

Siding with the Brown County Five today were all seven of the state Supreme Court justices.

Their 13-page ruling is listed as Case Number 12-0338 and is provisionally posted as “State v. Graham,” with “Slip Opinion No. 2013-Ohio-2114.”

The justices' opening comments summarizes their collective legal opinion. It says:

Statements made by employees of state agency during an investigation conducted by the Ohio inspector general were coerced and are therefore inadmissible in subsequent criminal proceedings—Garrity v. New Jersey applied.”

Consequently, thus ends a three-year-old ordeal that began as an investigation into alleged illegal activities by former state wildlife officer assigned to Brown County, Allan Wright.

This alleged activity went back to 2006 and centered around Wright allowing a South Carolina wildlife officer to use his Brown County address in order to obtain a much-less expensive Ohio resident hunting license rather than a much-more expensive Ohio non-resident hunting license.

Wright later pleaded guilty to other, federal charges, after it was determined he was covered by the Garrity Rule as the matter related to Ohio law.

Disputing that the upper chain of command was exempt from Garrity was Little.

She doggedly claimed the five Wildlife Division officials were not protected by Garrity when they offered potentially and allegedly incriminating testimony to the Ohio Inspector General.

It was the Ohio Inspector General's office which opined how the five Wildlife Division officials erred by treating Wright's alleged activity administratively rather than criminally.

The matter rose through the court system with each side having claimed victory at one point or another.

When the Brown County Five's attorneys appealed to the Ohio Supreme Court, the matter climbed to its legal pinnacle.

Today's Ohio Supreme Court ruling goes into a detailed summary of the events leading up to its members' decision.

And that decision was a long time in coming and also involved the hiring of separate attorneys by each of the defendants.

Among them was Miller who retained the services of Batavia, Ohio-based attorney John Woliver.

In a telephone interview with Woliver this afternoon (May 29) the attorney was grateful for the supreme's 7-0 decision though he did express frustration over the matter having traveled all the way up the state's legal food chain.

In short, said Woliver, the felony charges Little filed “would have failed” on their own virtually at every step of the way.

Also and vitally, Woliver stressed, no way did any of the five defendants get off on a technicality, that being the Garrity Rule.

“There never should have been any prosecution of these five people who devoted themselves to public service,” Woliver said. “Treating these people as felons was absurd.”

Woliver said also that public workers are often in a unique employment setting whereby following or not following an agency's guidelines or policies might end up as potential criminal activity, as was assumed by the prosecution in this case.

“In this setting, as a public employer operating with public funds, you have an obligation to act in a certain way that follows the Constitution and protects (one's) civil rights,” Woliver said.

Agreeing completely is Lehman's attorney, Mt. Orb, Ohio-based lawyer Michael E. Cassity.

“Sometimes bad things happen to good people and that's the beauty of our legal system; where one court – the (state) Supreme Court – can overrule an appellate court,” Cassity said.

Cassity said as well that even though his client and the other defendants achieved a tremendous legal victory the likelihood now is that some people will still consider them guilty.

In effect, Cassity says, Lehman and the others have seen their reputations sullied and “tarnished,” something that will be difficult to entirely be cleansed.

“I'm glad for my client and for the four other defendants, (but) this never should have happened,” Cassity said. “(Lehman) is a good man. It's unfortunate. These people aren't criminals; far from it.”

And though the Ohio Supreme Court's decision was a victory for his client and the other four defendants, Woliver says it is also a victory for county prosecutors as well as investigators such as the Ohio Inspector General.

The reason, Woliver continued, is because prosecutors can ensure that an investigative processes will not be not “undermined by sloppy” work but rather follow Constitutional principles.

“What's important to remember is that the Ohio Inspector General must follow the law; be aware of and sensitive to the fact that Garrity must be considered applicable,” Woliver said.

However, the supremes do acknowledge that Garrity is not the do-all to end-all when it comes to testimony by public officials, including those in law enforcement.

In effect, both sides got a paddling.

On the one hand, the Court says in its 13-page document:

In reaching this conclusion, we reject the state’s characterization of the OIG as a toothless agency with little or no coercive powers. While it was the ODNR (not the OIG) that compelled appellants’ statements in this case, we reject the notion that the OIG is incapable of compulsion simply because it lacks the ability to arrest or directly discipline employees of other state agencies.”

Then on the other hand the Court says:

Nor do we embrace appellants’ sweeping proposition that every OIG investigation is coercive within the meaning of Garrity.

To be sure, this case has more in common with cases extrapolating from Garrity than it does with Garrity itself.

Other than the express threat contained in the ODNR notice, there is scant evidence establishing that appellants subjectively believed that they were compelled to cooperate with the OIG investigation.
“Appellants did not testify at the hearing, and their claim of disciplinary policy and the general duty to cooperate with OIG investigations under R.C. 121.45.

Unlike the officers in Garrity, appellants were neither threatened by their interrogator nor confronted with a statute mandating removal from office.”

Even so, a ruling was needed and subsequently made by the supremes, that being:

Appellants answered questions after receiving a warning that they could be fired for failing to do so. “Statements extracted under these circumstances cannot be considered voluntary within the meaning of Garrity.

Accordingly, the court of appeals erred by reversing the trial court’s suppression order.

We therefore reverse the judgment of the court of appeals and reinstate the judgment of the trial court.”

Which closes the book on the matter.

Little says she will file papers to dismiss the felony charges against each of the five former Wildlife Division officials, the Brown County prosecutor noting that without the defendants' statements made to the Ohio Inspector General she lacks sufficient evidence to proceed in court.

Even so, Little says she has high praise for the work and role of the Ohio Inspector General's office.

Asked, however, if she believes the Wildlife Division and its parent Ohio Department of Natural Resources have themselves institutionally learned anything through this long process, Little was only slightly shy in responding that an end is near to an oft-times expressed concern by some of the state's hunters and anglers how there is a culture of a “good 'ol boy” attitude within the agencies.

Honestly I can't answer that because I'm not a sportsman, but I think we've had some good, positive changes in the (way) the ODNR's is involved here,” Little said.

- Jeffrey L. Frischkorn

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