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Fired Youngstown officer, city file more arguments

YOUNGSTOWN — Attorneys for the city and former Youngstown police lieutenant Brian Flynn both filed arguments with the 7th District Court of Appeals recently on whether visiting Judge Mark Frost erred in dismissing misdemeanor criminal charges against Flynn in June.

The completion of the filings should set the stage for possible oral arguments and a ruling in the coming months.

Flynn was fired from his job Dec. 2, 2022, after an investigation was carried out by the internal affairs division of the Youngstown Police Department into allegations that Flynn failed to assign about 24 referrals from the Ohio Internet Crimes Against Children Task Force involving alleged child abuse and child pornography cases in Youngstown.

After a separate criminal investigation was carried out by Detective Brian Breeden of the Summit County Sheriff’s Office at the request of Youngstown law director Jeff Limbian, Breeden turned over his investigation to the Youngstown Law Department, which filed the 14 counts of misdemeanor dereliction of duty against Flynn in Youngstown Municipal Court Oct. 25, 2022.

But Flynn’s attorney, Paul Siegferth, filed a motion to dismiss the charges, alleging that the city prosecutor’s office failed to prove at the May 4 hearing that no information from the internal affairs investigation was used in the criminal investigation of Flynn.

Breeden testified during the May 4 hearing that he did not consider any of the information from the internal affairs investigation in his criminal investigation, but Flynn’s attorneys have argued that the city failed to prove that it did not use that information, as required. Judge Frost agreed with Flynn’s position and dismissed the charges.

The city of Youngstown appealed the ruling, and the parties have filed written arguments for their position. The final two filings — one from Flynn’s appeals attorney and one from the city — were filed last month.

Flynn’s attorney argues that a 1972 U.S. Supreme Court ruling requires the government to “affirmatively prove that all of the evidence to be used at trial” came from sources outside of the internal affairs investigation, but the city “failed to satisfy its burden or proof” in that regard.

It also argues that Breeden “offered no testimony (May 4) as to where any of his evidence to be used at trial was found.”

Two witnesses during the May 4 hearing testified that they provided the internal affairs file to the Youngstown Law Department, but there was “no testimony presented from any … employees as to how the materials were handled, who had access to them and to whom they were disseminated,” the Flynn filing states.

The city’s filing focused on a decision by Judge Frost to allow 11 defense exhibits to be introduced as evidence in the case. The city argues they were admitted without sufficient grounds to determine they were authentic.

The 11 exhibits contained internal affairs materials regarding Flynn. Flynn’s counsel said he obtained them from the city during the discovery process in the case, but the city maintains that is “not true,” and Flynn’s counsel “fails to cite the record for his claim.”

The documents James Vivo, assistant Youngstown law director, provided to the defense contained “Bates stamps,” which are page numbers used to identify each page of a multi-page document. But the documents the defense introduced did not have the stamps because they “were not documents received in discovery,” the city argues. Discovery is the evidence the prosecution turns over to the defense prior to trial.

The city called the introduction of those documents “unbelievably prejudicial to the outcome of this case and likely tipped the scale against” the city.

If the “untrue allegation that the documents were obtained in discovery” is removed, then it would have been “clear that the (city) met its affirmative duty of proving by a preponderance of the evidence that its charges were not tainted by” internal-affairs information being used in the criminal investigation, the filing argues.

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