Prosecution practices scrutinized by disciplinary counsel

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COLUMBUS — Logan County Prosecutor Gerald Heaton’s practice of what may or may not be material evidence in a criminal case will be scrutinized by a threemember hearing panel as they consider allegations Kim Kellogg-Martin improperly withheld evidence in a 2002 case.

Both Mrs. Martin and Mr. Heaton testified Friday they did not believe two reports —one from the Logan County Sheriff’s Office and one from Logan County Children’s Services — contained material evidence and therefore they did not turn over the reports to defense attorney John Fisher.

“It was the rule in Jerry’s office to follow the requirements of Criminal Rule 16 closely,” Mrs Martin told the Ohio Supreme Court’s disciplinary hearing panel. “So there was no duty to turn them over.”

Mr. Heaton said the reports contained inaccurate dates as to when Joshua Giles had sexual intercourse with a DeGraff area girl and should not be taken separately from the other evidence.

When viewed against the wealth of evidence as to when the crime occurred, including the defendant’s confession, the dates on the reports were “immaterial,” Mr. Heaton said.

Disciplinary counsel Lori Brown’s case focuses on rules of conduct which require prosecutors to turn over evidence they or other law enforcement agencies uncover in an investigation to defense attorneys, even if that evidence does not support their case against a defendant.

She believes Mrs. Martin’s actions in effect decided how Mr. Fisher was going to handle the Giles case.

Both reports said the offense occurred in 2001 when the victim was 13. However, Mr. Giles was indicted on six first-degree felonies for crimes that occurred in 2000 when the girl was 12.

Mr. Fisher testified both reports would have been invaluable to discredit the testimony of the victim and in establishing her age.

“My advice to my client would have been much different,” Mr. Fisher testified. “It was the difference between a potential life in prison or probation. Had we gone to trial, I would’ve liked his chances (of acquittal) if I would have had those reports.”

Mr. Giles, who was 20 at the time of the offense, pleaded guilty to a third-degree felony count of unlawful sexual conduct and was sentenced to three years in prison. He served eight months before he was granted judicial release.

Under cross examination from Mrs. Martin’s attorney, Chris Weber, Mr. Fisher seemed confused as to when he received the sheriff’s report. Mr. Weber used signed affidavits and a sworn deposition to show Mr. Fisher claimed to have seen the report prior to Mr. Giles’ plea.

That report contained the inaccurate dates.

Mrs. Martin also testified she had conversations with Mr. Fisher about the difference in the dates and explained how she arrived at the 2000 dates.

Hearing Panel Chairman Joseph L. Wittenberg, a Toledo lawyer, said that if he were a defense attorney, he believes he would be entitled to the reports.

Panel member Sandra J. Anderson asked Mrs. Martin if she would turn over the reports if she had it to do over.

“I would have to avoid what I have had to go through this past year,” she said, “but not because I had to.”

The panel closed the hearing at 7 p.m. and asked lawyers to file closing arguments in two-week increments. Ms. Brown’s rebuttal is due by April 30.

The panel can choose to dismiss the complaint outright, recommend dismissal to the full 28-member council or recommend discipline with sanctions to the council.

It could take months for a decision.

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