Prosecutor asks reversal on paddling chief
WARREN — The Trumbull County prosecutor’s office says an 11th District Court of Appeals ruling overturning 17 of 18 convictions against former Fowler Township Police Chief James E. Martin could “open the floodgates” to people creating their own unsanctioned diversion programs.
The comment is contained in a filing this week that asks the Ohio Supreme Court to reverse the appeals court’s decision from last November. The high court can decide to hear the case or not.
Martin, 57, was convicted in 2005 in Trumbull County Common Pleas Court on 12 counts of using a sham legal process and six counts of dereliction of duty because he ran a diversion program — in which young men agreed to be paddled instead of prosecuted for criminal and traffic offenses.
For example, one 20-year-old was charged with theft but agreed to become part of the diversion program instead of being tried in Warren Municipal Court. One problem, the prosecutor’s office noted in its filing, is that Martin never told the offender that the municipal court had its own diversion program for first-time offenders.
The one conviction that the appeals court did uphold is one that said Martin failed to file a certain young man’s traffic ticket with any court.
The appeals court has said Ohio does not expressly prohibit police chiefs from creating unsanctioned diversion programs, so it is therefore legal, the filing said.
“By this tortured theory the Ohio General Assembly would have to identify by title every public servant who is not permitted to create a diversion program, rather than naming the one public servant [a prosecutor] who is,” the filing said.
The filing also takes issue with the appeals court’s finding that Martin’s convictions for using a sham legal process were improper because the jury found Martin innocent on the underlying charge of assault.
The filing cites Ohio and U.S. Supreme Court cases in which juries were found to have acted properly in finding a defendant guilty on certain offenses but innocent on the underlying offense.
Until the court decides, a resentencing for Martin that the appeals court ordered the common pleas court to conduct will be on hold, said David Toepfer, the assistant county prosecutor who handled the case.