Tuesday, October 27, 2015

Former Prosecutor Suspended For Adding Charges To Indictment

From Kathleen Maloney on the web page of the Ohio Supreme Court

The Ohio Supreme Court today suspended a former Butler County assistant prosecutor for one year because he ordered criminal charges that were not considered by the grand jury to be added to an indictment.

While the disciplinary board recommended that six months of the suspension be stayed, the Court in a 5-2 decision rejected the stay and imposed a full one-year suspension against Jason R. Phillabaum of Cincinnati.

Attorney Added Charges to Indictment
In December 2010, another assistant prosecutor submitted charges to a Butler County grand jury against a defendant accused of aggravated robbery and felonious assault. Assistant Prosecutor Phillabaum reviewed the indictment a week later and told a legal assistant to add gun specifications to it. The original prosecutor refused to sign the altered indictment, but Phillabaum signed it.

Based on his conduct, Phillabaum was indicted in May 2012 for forgery, dereliction of duty, tampering with records, interference with civil rights, and using a sham legal process. He pled guilty to dereliction of duty. The court sentenced him to 90 days of suspended jail time if he completed one year of community control and did 75 hours of community service. Phillabaum has complied with this sentence.

Court Increases Punishment
The attorney disciplinary board determined that Phillabaum also violated four professional conduct rules, including one prohibiting lawyers from lying to a tribunal and another that bars conduct that harms the administration of justice.

In a per curiam opinion, the Court adopted the board’s factual findings and determination of misconduct. However, the Court instead concluded that a suspension for a full year was appropriate.

Justices’ Votes
Joining the majority were Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O’Neill.

Justices Paul E. Pfeifer and Judith L. French dissented and would have imposed the board-recommended suspension of one year with six months stayed.

2015-0279Disciplinary Counsel v. PhillabaumSlip Opinion No. 2015-Ohio-4346.

The misconduct as described in the opinion

 On December 13, 2010, assistant prosecutor Josh Muennich presented the case against Tyree Johnson to a Butler County grand jury in Phillabaum’s absence. He instructed the grand jury to vote on charges of aggravated robbery and felonious assault, but did not present any evidence on any gun specifications related to the crime and did not instruct the jury to vote on any such specifications. Phillabaum reviewed the indictment on December 20, 2010, and instructed a legal assistant in the prosecutor’s office to add gun specifications to the indictment. The legal assistant told him that the gun specifications had not been included because Muennich had not presented them to the grand jury, and for that reason she felt uncomfortable adding them to the indictment. But when Phillabuam insisted, she complied. Muennich refused to sign the indictment containing the gun specifications, since he had not presented that evidence to the grand jury, but Phillabaum signed it, knowing that it contained a false statement and would be filed with the clerk of courts. After Phillabaum’s conduct came to light, the Butler County Prosecutor presented the case to the grand jury a second time and obtained a superseding indictment that included the firearm specification.

(Mike Frisch)


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