Man imprisoned for nearly 30 years can sue Ohio, judge says

29 Oct 2015 | Author: | No comments yet »

Court: Ex-death row inmate can pursue lawsuit against Ohio.

An innocent man who spent years on death row is allowed to continue his lawsuit against the state for wrongful imprisonment, the Ohio Supreme Court ruled on Wednesday. COLUMBUS, Ohio (AP) — A former assistant prosecutor accused of prosecutorial misconduct involving an altered indictment is suspended from practicing law for a year in Ohio.He’s not going to go down, either legally or literally, until he wins the acknowledgment he has sought for more than three decades — he’s not a killer. “I’m innocent and I always have been,” Johnston said this morning. “If I live long enough, I might finally get my justice.

The unanimous decision was a victory for Dale Johnston, now 82, who has fought for years to officially clear his name in the 3-decade-old killings of his stepdaughter and her boyfriend. The court’s 6-1 ruling on Tuesday said defendant Jason Dean showed little remorse and that the circumstances of the slaying during a robbery outweighed any evidence Dean presented in his favor.

The suspension came more than two years after Phillabaum, a West Chester Twp. resident who was in private practice, pleaded guilty in 2013 to a misdemeanor charge of “dereliction of duty.” In February, the disciplinary board recommended six months of the suspension be stayed, but the court in a 5 to 2 decision Tuesday rejected the stay and imposed a full year suspension, according to court officials. Although she has chosen to forgive Dean and doesn’t want him put to death, Arnold’s mother said she is relieved that her family won’t have to sit through any more court hearings. “This has been 10 years,” Vickie Arnold said. In 1984, a three-judge panel “convicted Johnston of two aggravated murders and sentenced him to death, based in part on testimony from a hypnotized witness. A 2003 law that updated the state’s definition of a wrongfully imprisoned individual can be applied retroactively, Justice Terrence O’Donnell wrote for the court. The court rejected its disciplinary board’s recommendation of a one-year suspension with six months stayed if Phillabaum didn’t engage in further misconduct.

According to the supreme court decision (PDF), Phillabaum reviewed a grand jury indictment in December 2010 and told a legal assistant to add a gun charge. In July 2014, the disciplinary panel held a two-day hearing in Columbus in which many employees of the Butler County Prosecutor’s Office testified, as well as Phillabaum. The board found the former Butler County assistant prosecutor knowingly made a false statement to a tribunal, engaged in dishonesty, fraud or deceit or misrepresentation and prejudiced administration of justice by causing gun specifications that weren’t presented to grand jurors to be added to an indictment in a court case.

The state still believes Johnston is barred from suing by the statute of limitations and because his previous lawsuit was rejected, and the state is confident it will prevail when the case returns to a lower court, said Dan Tierney, a spokesman for the attorney general’s office. Phillabaum signed the indictment, which was later replaced with a superseding indictment after the County Prosecutor learned of Phillabaum’s conduct. During the last shooting, Arnold was killed by Dean’s accomplice, 16-year-old Josh Wade, after the two chased him through a parking lot as he was leaving his job with a home for at-risk youth. The case dates to 1982, after parts of the dismembered bodies of Johnston’s 18-year-old stepdaughter, Annette Cooper Johnston, and her 19-year-old boyfriend, Todd Schultz, were discovered in a cornfield a few days after the pair vanished.

Johnston’s lawyer had argued that his client from Grove City was entitled to another chance at vindication under a 2003 change to the state’s wrongful-imprisonment law. The court agreed, saying the change in law retroactively applies to Johnston’s latest case, entitling him to return to appeals court for correct what he said was long-denied justice. 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.

An appeals court overturned the conviction and ordered a new trial, but a judge refused to allow the hypnotized witness’s testimony and other evidence, and the case was dismissed. However, the shaky case against him, built on police and prosecutorial misconduct and withheld evidence, fell apart on appeal and Johnston escaped the electric chair. Butler County Prosecutor Michael Gmoser, who fired Phillabaum on the night of his appointment to the office by the county’s Central Committee to the office declined comment. However, Johnston’s attorney, Todd Long, maintained that Wednesday’s decision “is a good step.” “If I am able to get everything that the state says I’m allowed to have, that’s still an insult when you figure what I lost,” Johnston said earlier this year in an interview. This story has been corrected to show one of the dead was Johnston’s stepdaughter’s boyfriend, not her fiance, and to delete a second erroneous reference to Johnston’s age.

Dean also attempted to shoot Arnold before Wade killed him.” Justice William O’Neill concurred in upholding Dean’s convictions, but dissented on the death sentence because he holds that the death penalty constitutes cruel and unusual punishment. After 10 years it still pains her to watch her grandchildren, including Titus Arnold’s daughter who was only nine days old when he was murdered, and know that they don’t get to have their father as their football coach or biggest fan. According to a study done in April of last year, “at least four percent of death sentences in the US send an innocent person to death row,” reported The Christian Science Monitor. “The reasons that innocent people go to prison are as varied as the crimes of which they’re convicted, and advocates have proposed numerous reforms for limiting the likelihood of convicting the wrong person,” wrote The Monitor. “Those reforms include overhauling eyewitness identification protocols, mandating that police videotape interrogations, upping the stakes for prosecutors who behave unethically, and improving the public defender system.” While conceding Johnston was not guilty, the office of Attorney General Mike DeWine fought his bid for legal vindication and monetary damages, saying he was not entitled to the retroactive application of the law.

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