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Judge in Sebring lead-notification case to bar ‘mistake’ defense

By Ed Runyan

Friday, August 24, 2018

By Ed Runyan

runyan@vindy.com

SEBRING

The judge in the James Bates lead-notification case has ruled that jurors will not be instructed that the former Sebring water department operator can be found not guilty because his failure to notify Sebring water customers of high lead levels was a “mistake of fact.”

But Bates’ attorney will be able to present evidence prosecutors had hoped to exclude regarding communications between Bates and the Ohio Environmental Protection Agency.

“Mistake of fact” is a legal concept that means a defendant is not guilty because he misunderstood a fact, such as his obligation to send notices to the public by a certain deadline.

Visiting Judge Patricia Cosgrove, presiding over the case on assignment in Mahoning County Sebring Area Court, ruled this week that jurors would not be given an instruction at the end of the trial set to begin Sept. 17 that Bates’ actions could be a “mistake of fact.”

Bates, 62, of Carey Road in Salem, faces three charges. Each carries a possible penalty of four years in prison if he is convicted.

The Sebring notification issue came up a short time after lead-in-the-water notifications became national news because of a similar problem in Flint, Mich. In Sebring, on a smaller scale than Flint, bottled water was trucked into town, the Sebring schools closed temporarily and children were tested for lead in their blood. The Ohio EPA was also criticized at that time for lax oversight of the notification rules.

Judge Cosgrove said the charges Bates faces accuse him of recklessly failing to timely send out public notices when lead levels in the Sebring drinking water exceeded allowable levels in 2015.

She ruled that allowing the jury to consider a “mistake of fact” defense is only acceptable in cases in which the defendant is accused of intentionally violating the law; Bates is not accused of that, only recklessly violating the notification requirements.

But Bates’s attorney will be allowed to present evidence regarding sometimes tardy emails and other communications from Ohio EPA officials regarding what Bates needed to do to notify the public of the high lead levels, the judge ruled.

Refusing to allow Bates’ defense to present this evidence would “deny the defendant his due-process right to present a defense as to why he did not act ‘recklessly’ or in heedless indifference” to his requirements, the judge ruled.

At an evidence suppression hearing in January, Bates’ attorney, John Juhasz, said the OEPA should take blame for Bates’ failure to notify because the OEPA was notified of elevated lead levels in Sebring’s water “at the same time as the village of Sebring was, that [Bates] was in contact with” Ohio EPA officials and that Bates was “told either to wait until he heard back or was not given any instructions at all.”

The judge also ruled it would not be proper to allow the defense to present evidence regarding disciplinary action taken by the Ohio EPA against Ohio EPA staff members not in direct contact with Bates for their actions in the Sebring case. She said such evidence would not provide insight into Bates’ state of mind.