DOW criminal court hearing delayed over documents

Georgetown, Ohio – A dispute over a request for state records
has delayed a court hearing to determine whether five DNR Division
of Wildlife officials’ criminal obstruction of justice cases will
be dismissed or proceed to trial.

Common Pleas Judge Scott Gusweiler of Brown County continued the
cases until Aug. 4.

At issue is a request for a copy of the IG’s Investigative
Techniques manual from Michael Cassity, attorney for James Lehman,
DOW executive administrator of law enforcement.

Cassity had requested that Lora Manon, chief legal counsel for
the IG, bring the manual to court on June 18, which had been set to
hear legal arguments on whether or not the charges against the DOW
officials should be dismissed.

James Rosenhoffer, attorney for DOW Chief David Graham, said
later the IG turned over only three pages regarding investigative
techniques.

“There is no separate manual to give them,” Brown County
Prosecutor Jessica Little told Gusweiler. Little said Manon turned
over two chapters specific to IG investigative techniques to
defense attorneys but did not recall the number of pages.

“It is hard to believe their manual is two chapters of policies
of procedures,” Cassity told Gusweiler.

Gusweiler told Little it is understandable the defense lawyers
“would be skeptical” and gave lawyers 30 days to prepare for a
hearing to compel the IG’s office to fully satisfy the defense
request for documents relating to its investigative techniques.

Rosenhoffer cited an Ohio law that requires the IG to “develop
and update in the light of experience… a working definition of
‘wrongful act or omission’ … (and) a manual of investigative
techniques.”

Manon said after court the IG provided defense lawyers “several
dozen” pages of material comprising the state watchdog’s so-called
Green Book on investigative techniques contained in two chapters or
sections.

Manon turned over to defense lawyers two chapters from the IG
personnel manual and the two chapters “really had not much
substance regarding investigative techniques,” Cassity said in an
interview. Cassity said he is specifically interested in reading
how IG investigators are trained to handle an interview where a
state employee refuses to answer questions such as in the recent IG
probe of how the State Highway Patrol handled a aborted undercover
drug bust at the Governor’s mansion.

Cassity said he reviewed the March 22 transcript of an IG
interview with Trooper Thomas Esenwein in which Esenwein refused to
answers questions and was then told by the IG investigator that he
was a state employee required to cooperate with the IG
investigation. The interview continued with the trooper answering
questions, Cassity said.

The Columbus Dispatch reported Esenwein threatened to walk out
of his IG interrogation because he didn’t want investigators
“ganging up on him.” Esenwein did agree to answer questions when
given a copy of Ohio law that requires state employees to cooperate
with the IG, the Dispatch reported.

The DOW defendants’ lawyers want to know how the IG conducts its
investigations in compliance with Ohio laws, Cassity said.

In a related matter, Little told Gusweiler a defense request for
the IG’s investigative notes in the DOW cases should be rejected
because the notes are not retained as records once an investigation
is concluded.

Gusweiler has yet to decide whether statements by the five
defendants to an IG investigator should be allowed to be used
against them in their criminal cases or whether their criminal
cases should be dismissed at the request of defense lawyers.

At issue is a defense request to dismiss the cases, citing a
U.S. Supreme Court decision that statements made by the five
defendants to IG deputy inspector Ron Nichols were coerced and
protected from criminal charges. Lawyers have also argued that the
statements should be suppressed from use in the criminal cases.

In its 1967 ruling in Garrity v. New Jersey, a case involving
New Jersey police officers convicted in a ticket-fixing scheme, the
Supreme Court held: “The protection of the individual under the
Fourteenth Amendment against coerced statements prohibits use in
subsequent criminal proceedings of statements obtained under threat
of removal from office, and that it extends to all, whether they
are policemen or other members of our body politic.”

“I am very confident that case law supports that Garrity does
not apply to these defendants,” Little told Ohio Outdoor News.

Lehman, Graham, Assistant DOW Chief Randy Miller, DOW District 5
Manager Todd Haines, and DOW Human Resources Manager Michele
Ward-Tackett have pleaded not guilty to one count each of
obstruction of justice and complicity to obstruction of justice.
The charges were filed by indictment on April 2. If convicted, the
officials each face up to five years in prison and a $10,000 fine.
In addition, as state employees, any conviction would end their
employment, and they would lose their pensions.

A criminal indictment against Brown County Wildlife Officer
Allan Wright was dismissed in May by special prosecutor David Kelly
of Adams County. Kelly said he dismissed the charges to conduct an
independent investigation for possible review by a new grand
jury.

Wright had been charged with two felony counts of tampering with
records and one count of falsification.

Wright was accused of assisting a South Carolina wildlife
officer in 2006 to obtain a $19 Ohio resident hunting license
instead of a $125 nonresident license. In addition, Wright was
accused of creating a false document by checking the South Carolina
officer’s three deer kills in Ohio by using Wright’s home
address.

Wright returned to work May 24 as Brown County wildlife officer.
He had been on paid administrative leave.

The five other DOW officials remain on paid administrative leave
pending the outcome of their court cases.

The five DOW officials are accused of not pursuing a criminal
investigation against Wright. The DOW conducted an administrative
investigation of Wright and gave him a verbal reprimand for failure
of good behavior.

In recent court filings, Little said the five defendants
hindered a potential felony prosecution of Wright.