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PADDLING CASE Martin seeks cancellation of jury trial



Published: Mon, January 3, 2005 @ 12:00 a.m.



A related criminal trial is pending in Trumbull County.

YOUNGSTOWN -- James E. Martin's lawyer wants a federal judge to cancel a jury trial and rule that those who had their buttocks paddled in his youthful offenders diversion program consented to the whacks -- as did their parents.

Martin, now retired, once served as a part-time police chief for Fowler Township. He also served as police captain for Howland Township, where he operated a youthful offenders diversion program that included corporal punishment.

Between March and May 2004, four civil lawsuits were filed against the townships and Martin by four males who participated in the diversion program, three of whom were paddled. The cases, which span July 2003 through January 2004, have been consolidated and are set for jury trial in July in Youngstown federal court.

The filers

Vindicator files show that those filing the lawsuits were Michael W. Harrington, 18, of Trumbull Drive, Niles; Robert J. McCrystal, 18, of Stillwagon Road, Howland; and Richard Thomas Woolf, 16, of Vienna, who were paddled by Martin, and Scott C. Villio, 20, of Oak Forest Drive, Niles, who received house arrest and loss of his driver's license.

Martin's Columbus lawyer, Douglas J. Suter, has asked U.S. Magistrate Judge George J. Limbert to issue a judgment on the pleadings, sometimes called summary judgment. Courts can issue such judgments before a verdict when no material issue of fact exists and one party or the other is entitled to a judgment as a matter of law.

Suter said in court papers that the facts are not in dispute for the males who broke the law, three of whom, with approval of their parents, voluntarily consented to being paddled in the diversion program. Participation in the program would result in dismissal of any criminal action.

Qualified immunity

Also, Suter said Martin has qualified immunity, which protects government officials from civil damages unless they clearly violated laws or constitutional rights.

Warren attorney Sara T. Kovoor and Boardman attorney Alan J. Matavich represent the plaintiffs. They allege Martin broke the law and violated their clients constitutional rights.

Judge Limbert gave the plaintiffs until Dec. 31 to respond to Suter's motion for judgment. The judge then ordered Martin's lawyer to reply to the plaintiffs' response by Jan. 17.

Kovoor, in response to the motion for judgment, said Martin used his authority to fraudulently induce the parents to get their sons into the diversion program. She said Martin distorted the facts and the law to entice the plaintiffs, and she called the diversion program an "illegitimate, extra-judicial disciplinary regime that involved unjustified beatings."

The lawyer suggested that Martin, who she said offered no law enforcement explanation for videotaping the paddlings, did so for his own "delectation" (enjoyment).

Kovoor said Martin likened his authority to that of a teacher who is permitted to use corporal punishment as discipline.

The Warren lawyer said Martin's reasoning would mean that anytime a police officer assaulted a juvenile he would be immune from a lawsuit because he had assumed control of the child in place of the parent. She said the case law cited in Suter's motion relates exclusively to legitimate school authorities.

Reasonable but not excessive

Kovoor said teachers or school administrators may impose reasonable but not excessive force to discipline. Martin, who was not a teacher or school administrator, designated himself as a probation officer and administered a non-sanctioned diversion program, she said.

In a related matter, Martin has a trial pending this month in Trumbull County Common Pleas Court. He faces charges of theft in office, dereliction of duty, assault, unauthorized photography and using a sham legal process, according to Vindicator files. The last count alleges Martin provided youthful offenders with a document that appeared official but was not.




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