Tuesday, November 14, 2023
Estate of Katherine Tomlinson v. Mega Pool Warehouse, Inc., Case No. 2023-0230
Fifth District Court of Appeals (Delaware County)
Kalvyn Stull, by and through his guardian, Brian Zimmerman, et al. v. Summa Health System et al., Case No. 2023-0352
Ninth District Court of Appeals (Summit County)
TERA LLC v. Rice Drilling D LLC, et al., Case No. 2023-0411
Seventh District Court of Appeals (Belmont County)
State of Ohio v. Sontez Sheckles, Case No. 2023-0294
First District Court of Appeals (Hamilton County)
Could Court Switch Case From Jury Trial to Bench Trial Without Defendant’s Consent?
Estate of Katherine Tomlinson v. Mega Pool Warehouse, Inc., Case No. 2023-0230
Fifth District Court of Appeals (Delaware County)
ISSUES:
- Was the constitutional right to a jury trial in a civil case violated when the trial court permitted the plaintiff to withdraw her demand for a jury trial without the defendant's consent?
- Was the trial court justified in changing a case from a jury trial to a bench trial once the plaintiff withdrew her request for a jury trial and the defendant did not pay the required jury deposit to conduct a jury trial?
BACKGROUND:
In 2016, Katherine Tomlinson contracted with Mega Pool Warehouse to construct an inground swimming pool and a deck in her backyard for $75,000. The parties had several disagreements regarding the work, which led to Tomlinson refusing to make additional payments requested by Mega Pool, and Mega Pool refusing to complete the job until paid. Tomlinson hired another company to demolish the partially constructed pool and install a new pool.
In 2018, Tomlinson sued Mega Pool in Delaware County Common Pleas Court for breach of contract and other claims. When she filed her lawsuit, she included in the caption the phrase “jury demand endorsed hereon,” which is required by Ohio court rules if a plaintiff elects to have a jury consider a civil case. Delaware County, like most Ohio counties, requires that a jury deposit be paid when a party to a civil lawsuit requests a jury. The deposit covers the court’s costs of assembling a jury and is not refunded if the party withdraws the jury request in the weeks leading up to the trial.
Case Experiences Multiple Delays as Pandemic Emerges
The case was set for a jury trial six times. The trial court originally set the case for trial in June 2019, then moved it to September 2019. It was continued again until January 2020 to give the parties a chance to mediate the matter. When that failed, the case was moved to May 2020. Then, due to the COVID-19 pandemic, the case was moved again to September 2020.
During a conference leading up to the September 2020 trial, the magistrate presiding over the case asked the parties if they would waive their right to a jury trial and consider a bench trial. If not, the trial would have to move to January 2021. Tomlinson agreed to the bench trial, but Mega Pool didn’t. Mega Pool asked for a continuance to the 2021 date. Mega Pool didn’t pay a jury deposit. The trial court ruled that by not paying the deposit, Mega Pool waived its right to a jury trial.
The bench trial proceeded in September 2020. Tomlinson died in March 2021 before a verdict was announced, and her estate then took over the case on her behalf. The court awarded the Tomlinson estate about $161,000 in damages and $230,000 in attorney fees. Mega Pool appealed the decision to the Fifth District Court of Appeals, objecting to the judgment and arguing its constitutional rights were violated when the trial court denied the jury trial. The Fifth District affirmed the trial court’s decision.
Mega Pool appealed the ruling to the Supreme Court of Ohio, which agreed to hear the case.
Second Deposit Not Required to Continue to Jury Trial, Contractor Claims
Mega Pool argues the Ohio Rules of Civil Procedure trump the local rules of the Delaware County courts. Tomlinson solidified her right to a jury trial by signing a complaint that included a demand for a jury trial, which is required by the civil rules, and by paying the $500 jury deposit required by the local rules.
Under Civ.R. 39(A), once a party requests a jury trial, there are only two ways to cancel, Mega Pool argues. The trial court can, on its own, find that a right to a jury trial doesn’t exist for the issues in the case, or the court can consider a party’s request to waive the jury trial with the consent of the other parties, the contractor notes. In this case, Mega Pool didn’t consent, yet the case proceeded to a bench trial. Mega Pool argues that the bench trial violated its rights to a jury trial under the Seventh Amendment to the U.S. Constitution and Article I, Section 5 of the Ohio Constitution.
Mega Pool explains the trial court maintained that once Tomlinson waived her right to the jury trial, she was entitled to a refund of her jury deposit. At that point, Mega Pool was obligated to pay the jury deposit, which it didn’t, and the court considered the request for a jury trial was waived. The trial court ruled Mega Pool wasn’t permitted to “piggyback” on Tomlinson’s deposit.
Mega Pool argues the rules didn’t require it to pay a deposit because Tomlinson did. The contractor claims that Tomlinson's request for a jury trial, her deposit, and their refusal to consent to a bench trial was enough for the case to proceed. The court didn’t need another deposit because there was no requirement to refund Tomlinson’s deposit immediately. Tomlinson would receive her deposit back after the trial, and because Mega Pool lost the case, the court would receive payment for expenses of convening a jury through court costs that were assessed to Megal Pool.
Mega Pool argues the trial court wasn’t justified in converting the trial to a bench trial because it didn’t pay a jury deposit when one was already made. The contractor wants the case remanded to the common pleas court to conduct a jury trial.
Deposit Issue Raised to Dodge Verdict, Estate Claims
Tomlinson’s estate notes that as of the last scheduled trial date, September 2020, Mega Pool at no time had requested a jury trial. The company never offered to pay a deposit. It only sought to further delay the trial until January 2021. The trial court denied moving the trial for a sixth time after Mega Pool didn’t pay the jury deposit, the estate notes. The estate claims the company raised the constitutional rights violation only after it lost the case and was directed to pay the estate $400,000.
The local rule is straightforward, the estate claims, and any party seeking a jury trial must pay the deposit. Since Tomlinson waived the jury trial, she was no longer required to pay a deposit, and the estate notes it did receive the deposit back in January 2022. If Mega Pool wanted a jury trial in January 2021, it had to pay a jury deposit, the estate argues, and it didn’t. The trial court was justified in finding that Mega Pool waived its right to a jury trial when it didn’t pay, the estate asserts.
The estate explains that Mega Pool is wrongfully tying the rights to a jury trial in the civil rules with the payment of the deposit. The civil rule notes that withdrawing from a jury trial requires the consent of all parties but says nothing about jury deposits.
The trial court may have had an obligation to continue with a jury trial once Mega Pool noted it wouldn’t consent to Tomlinson’s request to switch to a bench trial, the estate notes. At that moment, Mega Pool was the only party seeking a jury trial, and it had to follow the local rules to secure a jury trial. The civil rule and the local rule aren’t tied together, the estate maintains. Once Mega Pool was the party seeking a jury trial, it was obligated to follow the local rule and pay the deposit, the estate maintains. The trial court and Fifth District correctly determined that Mega Pool couldn’t piggyback on Tomlinson’s deposit, the estate concludes.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting the Mega Pool’s position was submitted by the Ohio Association of Civil Trial Attorneys.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Estate of Katherine Tomlinson: Marc Kessler, mkessler@hahnlaw.com
Representing Megal Pool Warehouse Inc.: Jonathan Beck, jbeck@yandalaw.com
Can Files Regarding Resident Physician Performance Be Disclosed?
Kalvyn Stull, by and through his guardian, Brian Zimmerman, et al. v. Summa Health System et al., Case No. 2023-0352
Ninth District Court of Appeals (Summit County)
ISSUE: Does the peer review privilege in R.C. 2305.252 apply to a healthcare entity’s files about resident physicians?
BACKGROUND:
Kalvyn Stull was in an automobile accident and was taken to Akron City Hospital. A tube was inserted into the 18-year-old’s throat to help him breathe, and he had surgery.
The tube was removed on the morning of June 20, 2018. According to a lawsuit filed by his family, Stull began having difficulty breathing in the early afternoon, and a tube was again inserted to help his breathing. The family alleges that the tube was inserted incorrectly, and he subsequently suffered a cardiac arrest. The resulting brain damage from the events has left Stull in a “permanent semi-vegetative state,” the family asserts. They add that Stull was placed in an extended care facility and requires 24-hour care.
In June 2019, Brian Zimmerman, who is the guardian of Stull’s estate, and members of the Stull family sued the Summa Health System, which operates the hospital. The lawsuit also names three doctors and a nurse. One of the doctors, Mazen Elashi, was a resident physician who participated in Stull’s treatment.
Family Wants Hospital File on Resident
In a request for discovery, the Stulls asked for Elashi’s “entire resident file, including every evaluation completed for every rotation.” Summa refused, stating that the entire file was privileged and could not be disclosed. Summa didn’t provide Elashi’s residency file to the trial court for an in camera review. Instead, Summa submitted affidavits to the court from two physicians, including Dr. Erica Laipply, the interim program director for the surgical residency program.
The case is based on a privilege in state law that prevents the disclosure of records related to the activities of peer review committees of healthcare entities. Peer review committees conduct professional credentialing or quality reviews of healthcare providers. R.C. 2305.252 states that records, such as evaluations and reviews, that are within the scope of a peer review committee are confidential and not subject to discovery in civil lawsuit.
In April 2021, the trial court determined that Laipply’s affidavit contained mostly generalities and opinions about why Elashi’s residency file was privileged. The court ruled that Summa didn’t meet its burden to show that the file was protected from discovery.
Summa appealed to the Ninth District Court of Appeals, which upheld the trial court decision. Summa appealed to the Supreme Court of Ohio, which accepted the case.
Confidentiality of Files Promotes Candid Evaluations, Healthcare Entity Asserts
Summa argues that residency files are kept and maintained by the hospital for reviewing and evaluating the competence and professional conduct of resident physicians and the quality of care they provide. The peer review privilege in R.C. 2305.252 applies to these records, Summa maintains.
When the legislature enacted the law, it “recognized that there was an overriding public interest in ensuring the confidentiality of the internal peer review records of health care providers,” Summa’s brief states. It contends that the privilege allows healthcare providers to candidly review and evaluate the care given by resident physicians. Summa notes that residents don’t have decades of experience and are still learning during their residency training while under the supervision of licensed physicians. With the freedom to meaningfully review and critique the work of residents, healthcare providers ultimately improve the quality of healthcare services, Summa maintains.
The healthcare provider contends that the Court has already ruled that the credentialing, peer review, and quality assurance files regarding licensed physicians are privileged and exempt from discovery. Residency files should be treated the same, Summa argues. If the lower court decisions are upheld, people who file medical malpractice lawsuits in Ohio will be able to obtain the complete file of any resident physician, and the ability to honestly evaluate residents will be negatively impacted statewide, Summa concludes.
Certain Documents in File Not Protected From Disclosure, Family Counters
The Stull family believes that Elashi inserted the breathing tube into Stull’s stomach instead of his lungs. They expect that Elashi’s residency file will contain authorization for him to perform intubations, testing results from his training on the procedure, the number of those procedures he had performed, and evaluations of his prior intubations.
The Stulls draw a distinction between the residency file and the materials prepared for the peer review committee only or generated by the committee. The family contends that only the documents used for peer review purposes are privileged, not the entire residency file, as Summa argues. The Stulls maintain that the peer review privilege requires Summa to show that each document in Elashi’s resident file is protected, and those that aren’t protected must be disclosed.
Contrary to Summa’s claims, the trial and appellate courts did not make sweeping conclusions that peer reviews of any resident physician must be disclosed, the family contends. Instead, the courts only determined that Laipply’s affidavit didn’t meet the burden under R.C. 2305.252 to justify Summa’s refusal to release Elashi’s resident file, the family states.
In the Stulls’ view, the lower court decisions recognize that discovery and the peer review privilege are intended to serve the same public policy – to protect patient health and safety. The court rulings properly balance disclosure and protection of the information, the Stulls argue. They also assert that concealing dangerous medical practices undermines the goal in R.C. 2305.252 to improve healthcare. The family concludes that the purpose of the privilege is to advance patient health and safety, not to use the privilege as a “generalized cloak of secrecy” around dangerous medical care, protecting providers at the expense of patients.
Additional Briefs Submitted by Medical and Legal Groups
An amicus curiae brief supporting Summa’s positions was submitted jointly by the American Medical Association, Ohio Hospital Association, Ohio State Medical Association, and Ohio Osteopathic Association.
The Ohio Association for Justice and Cleveland Academy of Trial Attorneys filed a joint amicus brief supporting arguments from the Stull family. Also backing the Stulls in an amicus brief is the Stark County Association of Justice.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Summa Health System et al.: Stephen Funk, sfunk@ralaw.com
Representing Kalvyn Stull et al.: Megan Frantz Oldham, mfrantzoldham@lawlion.com
Did Extracting Natural Gas From Deeper Formation Violate Contract With Landowner?
TERA LLC v. Rice Drilling D LLC, et al., Case No. 2023-0411
Seventh District Court of Appeals (Belmont County)
ISSUES:
- Does a clause in an oil and gas drilling contract allowing for drilling in “the formation commonly known as the Utica Shale” include the Point Pleasant rock formation?
- Does a determination of “bad faith trespass” in the exploration and extraction of natural resources include the requirement to prove that a trespasser did not have an honest belief of the right to explore or extract from an area?
BACKGROUND:
This case has drawn widespread interest from companies involved in the drilling of oil and gas in Ohio and from the landowners who receive royalties from the production of oil and gas. By filing amicus curiae briefs, the interested parties have expressed particular interest in the interpretation of “bad faith trespasser” and how a trial court could determine a driller was acting in bad faith without conducting a trial. The parties note that “bad faith” has harsh consequences in energy production cases. If a driller is trespassing in good faith, the damages are measured by the value of the mineral before it is mined. If acting in bad faith, the damages are the more lucrative full value of the mined mineral without any deductions for the cost and labor incurred in extracting the minerals. In this case, the landowner was awarded $40 million in damages based on the conclusion that the driller was a bad faith trespasser.
Thomas Shaw owns 271 acres of land in Belmont County. Shaw is a farmer who previously worked in the coal industry for 31 years. In 2013, Shaw signed contracts with a subsidiary of Rice Drilling, which allowed the company to drill six wells to extract oil and natural gas from beneath Shaw’s property. The contract was signed as the process of hydraulic fracturing, known as fracking, gained prominence in Ohio. Rice’s contract with Shaw allowed for exploring, gathering, and producing oil and gas from “the formations commonly known as the Marcellus Shale and the Utica Shale.” The contract further stated that Shaw retained the rights to the rock formations above the Marcellus Shale and below the Utica Shale.
A rock formation known as Point Pleasant lies below Utica. Shaw eventually transferred his rights in the contract to a company called TERA, which Shaw and his three daughters owned. In July 2017, TERA filed a lawsuit in Belmont County Common Pleas Court against Rice and another driller for breach of contract. TERA argued that Rice drilled beyond the Utica Shale into the Point Pleasant formation to obtain natural gas. TERA argued that it had reserved the right to sell the mineral rights to drill the Point Pleasant formation in a future contract. Rice contended that in the oil and gas industry, it was commonly understood that in Ohio, drilling in the Utica Shale also included Point Pleasant and that it complied with its contract with TERA.
Both parties asked the trial court for summary judgment. The trial court ruled in favor of TERA and found that Rice was a bad faith trespasser. The case went a jury to determine the amount of damages to be paid. The jury found that based on the actual market value of the natural gas extracted from Point Pleasant, TERA suffered $42 million in damages. The jury reduced the award by $2 million that TERA had received from Rice in royalty payments.
Rice appealed the trial court ruling to the Seventh District Court of Appeals. In a 2-1 decision, the Seventh District affirmed the trial court.
Rice appealed to the Supreme Court of Ohio, which agreed to hear the case.
Contract Should Be Determined by Plain Meaning of Words, Driller Asserts
Rice argues that contracts are interpreted by the “plain and ordinary meaning” of the words, and at the time the contract was signed, the term “commonly known as” the Utica Shale meant how the Utica Shale was described in the community or in oil and gas industry terms. Rice maintains that several documents from the U.S. Geological Survey and the Department of Energy describe Utica and Point Pleasant as being the same general formation. The company also noted the Ohio Department of Natural Resources (ODNR) and an industry expert testifying on behalf of TERA had, at the time of the contract or in prior reports, described Utica and Point Pleasant as being the same formation for drilling purposes.
Rice said only after the contracts were signed did experts start to distinguish Utica and Point Pleasant as different “stratigraphic” formations. The original contract with Shaw was developed based on language known as the “Smith/Goshen Lease,” which was signed by a group of many nearby landowners. The lead negotiator of those leases from the oil companies explained that landowners were told the contract was for the right to drill in the “Utica/Point Pleasant formation.”
Because the parties intended to use the common terms to describe the rights of the contracts, Rice wasn’t in breach when it drilled into Point Pleasant, the company asserts.
Rice points to the dissenting judge’s opinion on the Seventh District panel’s decision, which found that Utica and Point Pleasant were perceived by those in the oil and gas industry to be the same area for purposes of extracting gas at the commercial level. The company also notes that in a similar federal lawsuit that TERA filed against Rice, the trial court found the terms ambiguous and directed that a jury determine the parties’ meaning.
Rice argues the Supreme Court should either rule that Rice is following the contract or remand the case for a jury to decide the parties’ intent.
Rice also argues that a finding of a bad faith trespasser is a “fact-laden question” and that the trial court couldn’t conclude the driller was acting in bad faith without more evidence. Rice said it relied on the statements of regulators, industry experts, and other landowners to determine that it had an honest, “bona fide belief” that it was drilling in an area where the contract permitted. An honest, bona fide belief is evidence of good faith, and the company shouldn’t be held to the harsh damages imposed on a bad faith trespasser, the driller argues. Rice maintains that a trial court jury should have been able to consider the company’s intent before any conclusion could be made that it acted in bad faith.
Driller Willfully Ignored Warnings of Violating Contract, Landowner Argues
TERA notes that the rock units Utica Shale and Point Pleasant have been formally recognized in scientific literature since the late 1800s, and several experts involved in the case agree that the Utica Shale doesn’t include the Point Pleasant formation. More importantly, Shaw, through his years in the coal industry, was aware of the different stratigraphic regions under the surface of Belmont County.
TERA explains that several oil and gas drilling rights contracts don’t include specific formations and allow companies to explore any region under the surface granted by the landowner. However, this lease made it clear that it was limited to the Marcellus Shale and Utica Shale regions. TERA argues that the trial court clearly understood the reservation clause in the contract that said Shaw reserved the rights to the formations below the Utica Shale, which would include Point Pleasant.
TERA points out that Rice was required to file for drilling permits from ODNR and provide reports of its production. Those reports include fields from regulators that list Utica separately from Point Pleasant, as well as formations above and below those two. TERA notes that Rice was found to be drilling in other formations below Point Pleasant. The landowners claim Rice clearly knew it was drilling in areas outside of the contract agreement and concealed that information from TERA.
TERA argues that as Rice drilled under the terms of the contract, officials from ODNR informed Rice that Point Pleasant was a separate formation from Utica. It also asserts another drilling company that was seeking to drill on behalf of a group of landowners told Rice it was violating its contract by drilling into the Point Pleasant formation.
Rice ignored the warnings and the scientific information in its effort to maximize its profits at the expense of the property owners, TERA asserts. The driller breached the contract, and the lower courts properly concluded that Rice was acting in bad faith because there was no reason to believe it had the right to drill below the Utica Shale on TERA’s property, the landowners conclude.
Friend-of-the-Court Briefs Submitted
An amicus curiae brief supporting Rice’s position was jointly submitted by the Ohio Oil and Gas Association and the Southeastern Ohio Oil and Gas Association. The American Gas Association and the Ohio Chamber of Commerce also submitted a joint brief supporting Rice.
The National Association of Royalty Owners – Ohio submitted a brief supporting TERA. A group of landowners with similar claims – Cardinal Minerals, Portland Resources, Ray Norris, and Janice Emrick – filed a joint brief supporting TERA.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing TERA LLC: Craig Wilson, craig@wilsonlaw.com
Representing Rice Drilling D LLC et al.: John K. West, kevin.west@steptoe-johnson.com
Should Trial Court Have Permitted Federal Prosecutor Testimony, Video Evidence?
State of Ohio v. Sontez Sheckles, Case No. 2023-0294
First District Court of Appeals (Hamilton County)
ISSUES:
- To testify in a state court case, must a current or former employee of the U.S. Department of Justice provide the department’s written authorization in advance?
- Can a court definitively exclude evidence for trial based on a motion made during a pretrial hearing?
BACKGROUND:
A shooting occurred in November 2019 at the Chalet Bar in Cincinnati. Sontez Scheckles was charged with attempted murder, felonious assault, and having a weapon illegally.
The case was scheduled for trial on May 12, 2022. Cincinnati police had compiled a video from raw surveillance footage obtained from multiple cameras at the bar. The Hamilton County prosecutor asked the trial court for a continuance in order to secure a witness from the bar to authenticate the video. The judge rescheduled the trial for May 25.
Bar Owner Testifies About Surveillance Video
On the morning of the trial, the co-owners of the bar were present in court to testify. Co-owner Victoria Evans stated that the bar has several cameras in different locations. She told the court that she hadn’t seen the version of the edited video that was presented in court. She also later said she had been provided with edited video from that night a few minutes before testifying and she watched it on her phone. Evans said the footage showing the outside and inside of the bar were authentic and from the bar’s recording system.
The judge determined that Evans couldn’t authenticate the video because she didn’t know how it was cut together from the raw footage. The court noted that the purpose of the discussion was to authenticate the video and that it wasn’t willing to wait longer for the prosecutor to get the police officer who created the video into court to testify. The court excluded the video as evidence.
Federal Prosecutor Tries to Obtain DOJ Authorization
Also scheduled to testify was Zach Kessler, a former prosecutor for the U.S. Department of Justice (DOJ). While a federal prosecutor, Kessler had handled a federal case against Sheckles, who agreed to a plea in that case. The Hamilton County prosecutor maintained that Sheckles made statements on the federal plea form that incriminated him in the Chalet Bar shooting.
Defense counsel for Sheckles argued that federal law prohibited Kessler’s testimony unless he had prior approval from the DOJ. This authorization is known as a Touhy letter, based on a 1951 U.S. Supreme Court decision. Kessler told the court he had contacted the U.S. attorney’s office that morning and the office would provide the letter sometime that day. The judge told Sheckles’ attorney that he could object to the Kessler’s possible testimony in a motion in limine. The proceedings were put on hold, and Sheckles’ attorney filed the motion.
When the proceedings resumed later that day, Kessler conveyed that the Touhy letter had been emailed to the county prosecutor’s office and to him. Asked if he had a copy of the letter on his phone, he said, “I do as far as I know.” The prosecutor offered to show the court Kessler’s cellphone, but the parties indicated that the letter wasn’t presented to the court. The judge excluded Kessler’s testimony and the federal plea form from consideration as evidence.
State Appeals Decisions to Bar Evidence
The prosecutor maintained that the exclusion of the evidence prevented the state’s ability to prosecute Sheckles. The prosecutor appealed the rulings to the First District Court of Appeals, which upheld the trial court decisions.
The prosecutor appealed to the Supreme Court of Ohio, which agreed to review the issues.
State Contends That Bar Owner Could Authenticate Video
The Hamilton County Prosecutor’s Office argues that Ohio courts have ruled there is a low threshold for authenticating a video. The prosecutor’s brief maintains that photographic evidence is “a silent witness” that speaks for itself. It does not require more, the brief states. The prosecutor argues no expert testimony is needed to establish the reliability of the edited surveillance video. Testimony from a lay witness about the reliability of the system that produced the evidence is enough to authenticate the video, the prosecutor argues. The prosecutor contends the testimony from bar owner Evans properly authenticated the video compilation.
Accused Responds That Testimony Not Enough to Allow Video
Sheckles disagrees, stating that Evans wasn’t present during the shooting and had never seen all the raw footage from that night. She identified the bar’s front patio and a place inside the bar, but she gave no information about the surveillance equipment, its installation, the method for recording or downloading video, or the system’s reliability, Sheckles contends. She also couldn’t speak to how the police put together the video for court, he maintains. He argues that her testimony didn’t meet the low threshold for authenticating the video.
He also points out that trial courts are best suited to evaluate testimony and decide whether to admit or exclude evidence. The prosecutor is simply looking for the correction of a perceived error and offers no legal issues of great general and public interest for the Supreme Court to consider, Sheckles concludes.
State Argues Former DOJ Employee Could Testify
The prosecutor contends that the Touhy regulations for current or former federal DOJ employees didn’t bar Kessler’s testimony. The federal regulations put limitations on such testimony but don’t say that evidence in a court case must be excluded if the regulations are violated, the prosecutor argues. Instead, if Kessler violates the regulations, the remedy is for the DOJ to sanction him for lacking the proper authorization to testify, the prosecutor maintains.
The prosecutor also argues that the federal regulations don’t demand disclosure of the Touhy letter to the trial court or defense counsel before a former DOJ employee can testify. Even so, the record shows that the letter was secured within hours after Sheckles’ attorney raised the issue, and the letter was available for the trial court to review that day, the prosecutor contends. The prosecutor concludes that the trial court couldn’t exclude Kessler’s testimony.
Accused Maintains That Proper DOJ Authorization Must Be Provided
Sheckles counters that the prosecutor oversimplifies the federal regulations. Sheckles maintains that the laws require permission from the appropriate DOJ official before a current or former DOJ employee can testify about information learned, or material acquired, as part of the employee’s official duties. Sheckles adds that if a trial court attempts to require disclosure while the approval is pending, the employee must decline to comply, according to the regulations.
Sheckles also maintains that the Touhy letter is essential to the parties and the judge because it does more than provide authorization to testify. The letter also defines the scope of the testimony and any restrictions, he asserts. The letter had to be provided before Kessler could testify, Sheckles argues.
Attorney General Will Argue Before Court
The Ohio Attorney General’s Office filed an amicus curiae brief supporting the Hamilton County prosecutor. The attorney general will share the time allotted to the prosecutor during oral argument.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Ronald Springman Jr., ron.springman@hcpros.org
Representing Sontez Sheckles from the Hamilton County Public Defender’s Office: Lora Peters, lpeters@hamiltoncountypd.org