City says judge erred in dismissal
Former police officer was accused of dereliction of duty
YOUNGSTOWN — The Youngstown Law Department says visiting Judge Mark Frost erred in dismissing 14 misdemeanor charges of dereliction of duty against former Youngstown police lieutenant Brian Flynn in June.
The charges related to his work at the police department.
The Youngstown Police Department fired Flynn in December after carrying out an internal affairs investigation of allegations that Flynn failed to assign to a detective about 24 referrals from the Ohio Internet Crimes Against Children Task Force involving alleged child abuse and child pornography cases.
Flynn at the time was head of the police department division called the Family Investigative Services Unit. The division is nowww called the Special Victims Unit.
The law department’s new filing, in the 7th District Court of Appeals, states that investigator Brian Breeden of the Summit County Sheriff’s Office, who handled the investigation at the request of Youngstown Law Director Jeff Limbian, testified at a hearing that he used only allowable evidence in his investigation.
Some evidence was not allowable — anything obtained during a Youngstown police department internal affairs investigation. By law, such information could not be used against Flynn because such information is obtained under duress from an employer.
Flynn’s attorney, Paul Siegferth, said during a May 4 hearing on whether to dismiss the charges that the U.S. Supreme Court ruling in Garrity v. New Jersey prohibits use in a criminal matter of any “compelled statement” taken from a public employee during an internal affairs investigation.
The new law department’s filing states that Frost’s ruling confirmed that “no evidence presented by either party” at the May 4 hearing indicated that anyone else disallowed evidence.
Frost ruled that he was dismissing the charges against Flynn because the Youngstown Law Department failed to prove that it did not use statements obtained in the internal affairs investigation.
The new law department filing, submitted by attorney Adam Buente of Boardman, states that the city “met its affirmative duty (during the May 4 hearing) of proving by a preponderance of the evidence that its charges were not tainted by” use of non-allowed material.
“While one could argue that the (city’s lawyers) did not remove every conceivable possibility of taint, that was not the (city’s lawyers’) burden,” the filing states. It added that city attorneys proved that they did nothing wrong through the testimony of detective Breeden.
James Vivo, assistant Youngstown law director, reviewed the information Breeden turned over, and Vivo filed the charges against Flynn based on that.
Flynn’s attorneys next will have the opportunity to file a memorandum in the case.