Should jury in former Sebring water operator trial hear about EPA’s role?


By Ed Runyan

runyan@vindy.com

SEBRING

The lawyers in the James Bates lead-notification case have filed arguments on whether the former Sebring water department operator can argue his failure to notify the public of lead in the water in 2015 was the result of the actions of the Ohio Environmental Protection Agency.

Bates, 62, of Carey Road, is due to go on trial Sept. 17 in Mahoning County Area Court on three counts of failing to notify Sebring customers that routine water testing showed there was an excessive amount of lead in the drinking water.

If convicted, he could get up to four years in prison on each count.

Attorneys from the Ohio Attorney General’s Office prosecuting the case filed a motion asking Visiting Judge Patricia Cosgrove of Summit County to prevent Bates’ attorney, Atty. John Juhasz, from arguing a mistake-of-fact defense – that Bates is not guilty of the crimes because he was waiting for the Ohio EPA to provide additional guidance before he sent notifications to Sebring customers.

A prosecutors’ filing June 25 says Bates apparently also will argue he had never before had to notify water customers of a high lead level and was ignorant of the law’s requirements. That, the prosecutors say, is called a mistake-of-law defense.

Prosecutors argue both of these defenses are unavailable to Bates because the law only requires prosecutors to prove he “acted recklessly.”

According to the Justia website, which “provides free law ... for lawyers, students and consumers,” a mistake of fact is when a defendant misunderstood a fact, such as taking something he believed was his. The mistake must be honest and reasonable.

A mistake-of-law defense is only available in limited circumstances, Justia says – when the law has not been published or when the defendant relied on an interpretation from a public official, for instance.

Prosecutors say barring mistake-of-fact and mistake-of-law evidence will ensure a jury only hears relevant evidence – that Bates “recklessly failed to comply with the drinking water ... notice requirements as part of Ohio’s Safe Drinking Water Act.”

At a suppression hearing in the case in January, 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 Sebring-notification issue, which came on the heels of the Flint, Mich., water crisis, led to bottled water being trucked into the Sebring area, schools being closed temporarily and children being tested for lead in their blood.

Juhasz’s response July 13 says citizens have an “absolute, immutable right to challenge the government’s allegations in a criminal case.”

He argues that “What the government tries to portray as a mistake-of-fact defense is nothing more than evidence designed to show that the defendant did not act, as the government claims he did, with heedless indifference to the consequences.”

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