September 30, 2005

Jailed under voided sex law, man has appeal hearing

by Eric Resnick

Warren, Ohio--The Eleventh Ohio District Court of Appeals will decide whether or not to overturn the conviction of a gay man who was jailed for breaking a nonexistent anti-gay sex law.

The court heard arguments in the case September 23. Judge William M. O�Neill presided over a panel with judges Diane V. Grendell and Cynthia W. Rice.

If the conviction is overturned, Keith Phillips, 22, now of Youngstown, will be able to sue his former lawyer and the Warren municipal judge that sent him to jail.

Phillips, then of Warren, was convicted twice of �importuning,� under a city ordinance modeled after an Ohio law making it a crime for a person to ask another person of the same sex for sex, if the person being asked could have been offended.

The law was ruled unconstitutional by the Ohio Supreme Court in May, 2002, partly because it did not apply to similar heterosexual situations. It was immediately stricken from the Ohio Revised Code and all municipal codes.

Phillips� first conviction was seven months later in December of that year, stemming from a co-worker�s complaint. He was 19 at the time.

Public records and later court filings show that Warren Municipal Judge Thomas P. Gysegem and Warren Assistant Prosector Traci Rose had been notified that the law had been voided, but prosecuted Phillips anyway.

Phillips, however, didn�t know the law was gone. He went to his arraignment without a lawyer and pleaded no contest to the charge. Gysegem sentenced him to of five years probation, sex offender courses, monitoring of his computer, a six-month suspended jail sentence and a $600 fine.

Five months later, Detective Sgt. Daniel Hudak arrested Phillips at work and charged him with felony importuning under another law, still in effect, which covers juveniles. A 14-year-old had complained that a man in a passing car propositioned him for oral sex.

The boy�s descriptions did not match Phillips or his car, and Phillips had proof he was at work at the time. But his attorney Ben Joltin talked him into a plea bargain: Plead no contest to a lesser charge--under the same nonexistent gay-only law as the first time--in exchange for four months in jail and no probation violation from the first conviction.

Rose and Gysegem were the prosecutor and judge this time, also.

When Phillips got out of jail in August 2003, he discovered the law he was jailed under did not exist. He hired attorney Randi Barnabee of Bedford, who filed an $11 million federal civil rights lawsuit against Gysegem, Joltin, the city of Warren and others.

That suit was dismissed in March, 2005 by federal judge Christopher A. Boyko, who felt the matter was better suited to state courts.

But the federal suit prompted the first conviction to be vacated in December, 2003. Barnabee chose to appeal the second conviction to the Eleventh District instead of asking for it to be vacated, because she feared the city would attempt to give itself a defense in the then-active federal suit by reinstating the felony charge and forcing a trial.

Judge said to have anti-LGBT bias

A week before the September 23 hearing, Barnabee moved for Judge Grendell to recuse herself from the appeals panel. Barnabee said the judge was biased against lesbian, gay, bisexual and transgender people.

�Judge Grendell has either demonstrated outright bias or, at the very least, has given rise to the perception of bias where issues of gender-role nonconformity are concerned,� wrote Barnabee.

Barnabee�s observations stem from another Eleventh District ruling Grendell authored. In that case, a heterosexual couple was denied a marriage license in Trumbull County because the groom is transsexual. Barnabee also represented the couple, Jacob and Erin Nash.

Dissenting judge Judith A. Christley called the December 31, 2003 ruling �outright ignorance used by courts . . . to justify obviously unconstitutional laws.� Grendell cited overturned opinions, an advisory opinion, dissenting opinions and a bill not yet passed into law in order to prevent the marriage. None of these carry any force of law in an appeals court.

The bill cited by Grendell was Ohio House Bill 272, commonly known as the �defense of marriage act.� At the time, it had not yet been sent to the Ohio Senate.

Barnabee continued, �[Phillips] is a young man who was convicted of and incarcerated under a nonexistent law because of his gender-role nonconformity, namely his homosexuality.�

�Judge Grendell has demonstrated a willingness to cite to nonexistent law, overturned precedent, and advisory opinions without explanation where the appellants were likewise gender-role nonconforming,� Barnabee wrote. �[H]er participation in this case poses an obvious conflict of interest and guarantees an appeal should this court rule against the appellant.�

City of Warren didn�t appear

Grendell remained on the panel, with the assurance from O�Neill that the three judges had discussed Barnabee�s recusal motion and decided it wouldn�t be necessary.

The city of Warren, however, did not submit a brief in the case and as such had no right to participate in oral argument.

Barnabee told the panel, �It�s a tacit admission that [the city of Warren] failed to show up or even file. Either they are supremely confident they are going to win or they are unable to justify their position.�

With Phillips and his partner Matt Callahan in the courtroom, Barnabee used 20 minutes of the allotted half hour to answer the judges� questions.

Barnabee began by telling the judges that the case is difficult only because there is so little precedent for people being convicted of nonexistent laws.

The questions by all three judges indicated that they were perplexed by the situation that led to the appeal.

�How does anyone plead no contest to an unconstitutional law?� asked O�Neill.

�What went wrong?� asked Grendell.

�At every level, my client was failed,� said Barnabee.

�If it�s unconstitutional, it�s unconstitutional,� said Grendell.

Grendell and O�Neill also inquired as to whether or not the appeal is moot because Phillips already served the sentence.

Barnabee answered that the existence of the first conviction created the situation that made the second conviction possible.

�That�s a considerable record for him,� said Grendell.

�There�s no way to get justice other than to overturn this conviction,� said Barnabee, who closed her presentation by asking for a ruling from the bench.

O�Neill said that was not possible due to court rules.

A ruling is expected within six months.

List of Stories in this Week's Issue