By David Skolnick
The Ohio Attorney General’s Office can’t thoroughly investigate a May 26 traffic stop by the Mahoning County Sheriff’s Office of county Auditor Michael Sciortino.
“Because our review was done from materials that contained constitutionally protected testimony, we cannot proceed with any further investigation or prosecution, and we must conclude our involvement in the case,” wrote Micah R. Ault, an assistant attorney general in the office’s special prosecutions section in Cleveland, in a Friday letter to county Prosecutor Paul J. Gains.
Gains said he referred the case to the attorney general to avoid the appearance of impropriety.
But the AG’s office couldn’t do much because statements it received from the original investigation — conducted by the Summit County Sheriff’s Office at the request of Mahoning County Sheriff Jerry Greene to also avoid a potential conflict of interest — are protected under Garrity rights.
“Those in public positions are compelled to tell everything [in the internal investigation] or you could lose your job,” said Jill Del Greco, a spokeswoman for the attorney general. Because of that, “any statements are constitutionally protected.”
Specifically, the protection is in the Fifth Amendment that states the government cannot compel someone to be a witness against himself.
“During that [Summit County] investigation, the deputies were required to recount the incidents of that evening,” Ault wrote. “As you know, the U.S. Supreme Court has long held that when a public agency compels an employ to give a statement, any statements the witness subsequently makes are constitutionally protected.
“The file provided to the AG’s office contained compelled testimony, and the bulk of the investigation itself was derived from these statements,” Ault wrote.
Gains said he was aware that Garrity “was involved, but it doesn’t mean [the AG’s office] couldn’t investigate. I sent it to them and said, ‘Look at this, guys.’ It was a fresh set of eyes outside the system.”
Gains pointed out that the Summit County Sheriff’s Office granted Garrity protection to those being investigated.
“Garrity is there for a reason: in order to get evidence,” he said. “Everybody wanted outsiders to take a look at this to avoid a hint of impropriety. I knew Garrity would be an issue, but people would say, ‘It’s a cover-up’” if it was investigated by Mahoning County.
The Summit County investigation found that Sciortino “failed miserably” a field sobriety test after Sgt. James Touville, a deputy sheriff, pulled him over in Canfield Township on suspicion of driving under the influence.
Instead of a charge of operating a vehicle while impaired, Sciortino was cited for a marked-lanes violation and driven home by T.J. Assion, then a sheriff’s department supervisor.
The AG’s investigation, given to the office July 3, officially concluded Thursday.
Sciortino was given a citation for failure to control.
“What we found was there was insufficient evidence of impaired driving,” Del Greco said. “There were no blood, breath or urine tests. None were taken. Because of that, we decided to resolve the case with failure to control.”
Greene said he was “satisfied with the results. It’s an unfortunate situation that I handled and was looked at by the attorney general’s office. Now we will move on and get past this.”
Greene said he believed Garrity rights would be a factor in the attorney general investigation.
Also, he said, “It was my opinion that it would be highly unlikely” for the attorney general to charge Sciortino with OVI.
“We found that authorities did not charge Sciortino with OVI, did not complete an arrest report, and did not request any breath, blood or urine samples,” Ault wrote.
In a prepared statement late Thursday, Sciortino said he would plead to the new minor misdemeanor charge.
“I have done this to bring the matter to a close and so that our attention can remain on the public’s business,” Sciortino wrote. “The fine and court costs will be mailed to the court and paid by me, just as would be the case with any other traffic citation.”
Sciortino wrote that he would have no further comment. He did not return calls from The Vindicator on Friday.
In July, Assion was demoted to his previous rank of sergeant, while Maj. Jeffrey Allen, patrol supervisor who called Assion after Sciortino was pulled over, and Touville were suspended without pay for 10 days and three days, respectively.
In June, Sciortino paid a fine and court costs for the original citation for failure to drive within marked lanes. He paid a $50 fine and $80 in court costs to the Mahoning County Area Court in Canfield.