Officers' Forced Statements Can't Be Used In Prosecution, Ohio Supreme Court Decides

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By Bebe Raupe

CINCINNATI--Public employees' statements made under threat of job loss during an administrative investigation are inadmissible in subsequent criminal proceedings against them, the Ohio Supreme Court ruled May 29 (State v. Graham, Ohio, No. 2012-0338, 5/29/13).

In a 7-0 decision, the court reversed a ruling by the Ohio's Court of Appeals, saying it did not follow the U.S. Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493 (1967), which says that an employee seeking suppression of comments must have reasonably believed “statements to be compelled on threat of loss of job.”

As a result of the ruling, felony charges against five Ohio Department of Natural Resources officers will be dismissed, according to the county prosecutor handling the case. “Without the statements, there is insufficient evidence to obtain a conviction,” the prosecutor said in a statement.

Officers Indicted Following IG Investigation
The officers, managers in ODNR's Division of Wildlife, were indicted in 2010 for obstructing justice and complicity to obstruct justice, fifth-degree felonies, after an Ohio inspector general's investigation into a falsified hunting license.

Following the investigation, the OIG's report was sent to Brown County's prosecuting attorney. The report concluded that the five knew that a subordinate improperly obtained a state-resident hunting license for a South Carolina friend and that they violated their duty by failing to report the illegal conduct for potential criminal prosecution.

The managers filed motions to suppress use of the statements they had made during the OIG investigation, citing Garrity.

The trial court granted their motion to suppress, noting that before the interview the officers had been given a copy of a departmental policy stating “failure to answer [the OIG's] questions, completely and accurately, may lead to disciplinary action up to and including termination.” But the ruling was reversed on appeal.

Warned of Firing for Failing to Answer
Ohio Supreme Court Justice Judy French said that in the course of that investigation the five officers answered questions after receiving a warning that they could be fired for failing to do so.

“Because appellants spoke to [an OIG investigator] after being expressly warned by ODNR that their failure to do so would subject them to disciplinary action up to and including termination, we conclude that their statements were compelled under Garrity,” French wrote.

The case hinged on worker protections affirmed by the 1967 ruling that held public employees cannot be compelled to incriminate themselves by their employer, the state supreme court said. In that case, statements made by police officers under the threat of firing in a departmental ticket-fixing probe could not be used during subsequent criminal proceedings against them.

Chief Justice Maureen O'Connor and Justices Paul E. Pfeifer, Terrence O'Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O'Neill joined in the unanimous opinion.

Brown County Prosecuting Attorney Jessica A. Little in Georgetown, Ohio, represented the state. Gary A. Rosenhoffer in Batavia, Ohio, John Woliver in Batavia, Michael P. Kelly in Mount Orab, Ohio, Michael E. Cassity in Mount Orab, and J. Michael Dobyns in Wilmington, Ohio, represented the officers.


Text of the ruling is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/2013-Ohio-2114-1(2).pdf.

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