Sunday, February 5th, 2023
Sunday, February 5th, 2023

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Judge: Interviews can’t be used in DOW case

Georgetown, Ohio —Statements made by five DNR Division of
Wildlife officials to a state watchdog investigator cannot be used
in their criminal cases, which could result in the judge dismissing
felony charges against the officials, a judge has ruled.

“The law is clear,” Common Pleas Judge Scott Gusweiler wrote in his
ruling in Brown County. “If these statements were used in the grand
jury or a witness to the statements… (Investigator) Ron Nichols
testified at grand jury, these cases must be dismissed.”

Gusweiler ordered Brown County Prosecutor Jessica Little to prepare
for his review a transcript of an April grand jury proceeding,
which resulted in felony charges against DOW Chief David Graham,
Assistant Chief Randy Miller, Law Enforcement Program Administrator
James Lehman, District 5 Manager Todd Haines and Michele
Ward-Tackett, DOW Human Resources executive administrator.

The officials are each charged with felony obstruction of justice
and complicity to obstruction of justice involving an internal DOW
administrative investigation of the Brown County wildlife officer,
who assisted an out-of-state wildlife officer to purchase a
resident hunting license for $19 instead of a $125 nonresident
license.

Gusweiler issued his ruling Oct. 4 after hearing testimony Sept. 2
on a defense motion to suppress various statements made to Nichols,
a deputy Inspector General who interviewed the DOW officials about
their roles in an internal investigation of Brown County Wildlife
Officer Allan Wright.

Wright was also indicted, but his charges were dismissed by Little
to allow an independent investigation by a special prosecutor from
Adams County. Nothing further has come out of the case against
Wright.

Gusweiler said testimony revealed the defendants were notified by
the DNR that they were the subject of “investigatory interviews”
that could result in dismissals for failure to cooperate with an
Ohio Inspector General’s inquiry. The notification occurred before
a March 15 IG report that was sent to the Brown County prosecutor.
Indictments were returned against the officials on April 2.

Defense attorneys argued the interviews should be barred from the
court cases because they were protected by so-called “Garrity”
rights against self-incrimination even though they were not given a
“Garrity” warning by investigator Nichols.

Garrity refers to a 1967 U.S. Supreme Court case – Garrity v. New
Jersey – in which the high court held protection against
self-incrimination prohibits use in later criminal proceedings of
statements made under threat of removal from office.

“It seems equally clear that Mr. Nichols did not give ‘Garrity’
because he feared that would interfere with subsequent criminal
charges as he noted in one of the interviews,” Gusweiler wrote in
his ruling. The judge also said evidence showed Nichols did not
comply with Ohio law when he failed to advise the five officials of
their right to an attorney.

Gusweiler concluded that Garrity’s protection against
self-incrimination applied to the DOW officials because as state
employees they were required by law to cooperate with the Ohio
Inspector General’s investigation.

ODNR Labor Administrator Brett Benack testified that the defendants
knew by law that failure to cooperate with the IG could subject
them to dismissal, Gusweiler noted.

“It is evident that defendants believed their statements were
compelled by threat of job loss, and this belief was objectively
reasonable,” Gusweiler wrote.

The state of Ohio, the judge wrote, wanted the court to overrule
the defendants suppression motions because of public policy
considerations.

“The constitutional rights of these defendants, all citizens of the
United States, trump public policy 100 percent of the time,”
Gusweiler wrote.

“We are very pleased,” said Michael Cassity, of Mount Orab,
attorney for Lehman, DOW law enforcement program administrator.
“The judge reviewed the facts and the law and is correct in his
ruling.”

Garrity protection to state employees against self-incrimination is
self-executing whether the warning was given or not, Cassity
said.

“This is significant movement in the cases,” said ODNR spokesman
Mike Shelton.

If the indictments are dismissed, the DOW officials would likely be
allowed to resume their duties, he said.

Little, the prosecutor in the case, said she intends to appeal
Gusweiler’s ruling to the 12th District Court of Appeals.

“In my opinion, the ruling effectively guts the powers of the
Inspector General,” Little said.

“We are not pleased,” said Lora Mannon, chief legal counsel for the
Inspector General. “We don’t believe that the court interpreted the
facts that were testified to correctly in arriving at his
decision.”

Graham’s attorney, Gary Rosenhoffer of Batavia, referred comment
about the case to former Ashland County prosecutor Robert DeSanto,
who said he has closely followed the DOW case.

“I hope they are exonerated,” DeSanto said of the DOW officials.
“There is no question in my mind they are, in fact,
innocent.”

Gov. Ted Strickland told Ohio Outdoor News recently he personally
felt terrible about Graham, and other longtime DOW officials,
involved in the cases.

“I worry about good and decent people who are caught up in power
struggles,” Strickland said.

All of the defendants have been on paid administrative leave since
the case arose.

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