April 14, 2006

Phillips says AG candidate Dann may still be in trouble

by Eric Resnick

Warren, Ohio--A gay man who served four months in jail for a nonexistent sex crime says an Ohio attorney general candidate involved in the case is not off the hook, even though he has been dismissed from a lawsuit.

Keith Phillips of Youngstown dismissed his fraud complaint against State Sen. Marc Dann on April 7 after threats from Dann�s attorney.

The suit was filed by Phillips and his attorney Randi Barnabee of Bedford March 22 against Dann, his former employee Ben Joltin, Warren Municipal Court Judge Thomas P. Gysegem and Wayne Trimble, who was one of his accusers.

Phillips, now 23, served four months in jail in 2003 after two convictions for �importuning,� seven months after the Ohio Supreme Court struck the law down.

The measure had made it a crime to ask someone of the same sex for sex, if it might offend them. It did not apply to heterosexual situations, which is part of the reason the court found it unconstitutional.

Dann and his junior associate Joltin were involved in Phillips� defense in the second case. Only Dann�s charges were dismissed, without comment.

The others are still defending counts of legal malpractice, defamation by slander, and assault.

The now-dismissed fraud count came from Dann turning Phillips� defense over to Joltin after Dann disclosed to Phillips� grandmother Barbara Berndt that he�d had an earlier conversation with Gysegem about Phillips� case.

Dann doesn�t deny the discussion with the judge, but now downplays its significance, and says that Gysegem never mentioned Phillips by name.

Dann told Berndt that he knew the conversation was about Phillips, and as such that disqualified him to represent her grandson. That�s when he turned Berndt and Phillips over to Joltin and accepted $2,000 for Joltin to defend Phillips.

Barnabee said Dann�s lawyer John O�Neil, of the firm Reminger and Reminger, threatened her by faxed letter late April 5 that if Dann was not dismissed by Friday, two days later, he would have her and Phillips sanctioned.

Barnabee agreed to dismiss him after consulting Phillips.

�It�s not that I don�t think it�s strong enough to stick,� said Barnabee. �It is arguably fraud, but Keith has other recourse. If we fight over this, it sidetracks the rest of the case. Marc Dann is not the biggest player in this suit.�

Barnabee said bringing the suit after another one against Dann was dismissed in federal court was a matter of �unsettled law� and would have required appeals.

�If Keith had no other recourse, we would have rolled the dice,� she said.

The �other recourse� Phillips is pursuing against Dann is a complaint with the Ohio Supreme Court Disciplinary Counsel, which could get Dann disbarred.

During negotiation with O�Neil, Barnabee attempted to get Berndt�s money back, but Dann refused.

Phillips said he is committed to filing the disciplinary complaint soon. The disciplinary counsel would not have considered it until after his suit against Dann had ended. Once a bar complaint is filed, it cannot be dismissed.

Legal ethics are clear that if an attorney is prohibited from employment for any reason, �no partner or associate of his or her firm may accept or continue such employment.�

Dann claims the filing of the fraud suit was politically motivated, and has suggested to political supporters that his Democratic primary opponent, former Cleveland law director Subodh Chandra put Phillips up to it.

�The lawsuit was completely frivolous and has been dismissed from both state and federal court. It is an election year and desperate political opponents may regrettably seek to inject politics into a case against me that is completely without merit,� said Dann in a written statement.

Phillips refutes the claim of political motivation.

�This has been going on for almost three years,� said Phillips, �and long before he decided to run for office.�

Phillips also said he feared Dann�s campaign �trying to victimize me further� with such claims had he not dismissed the fraud complaint.

Phillips has heard of Chandra, but has never spoken to him nor met him. Barnabee only knows Chandra from brief phone contact.

Chandra learned of Phillips� situation by reading the Gay People�s Chronicle.

O�Neil argued that the new fraud suit was merely a restated version the legal malprctice suit Phillips filed against Dann in November 2003. That suit, which was in federal court, named all the defendants in the current suit and some others.

That suit was originally assigned to Judge Lesley Wells, who presided over all pleadings and motions until January, 2005 when it was transferred to Judge Christopher Boyko, who had just been appointed by President George W. Bush.

Nine weeks later, and without any hearings, Boyko dismissed some of the defendants including Dann, with prejudice, and the others without prejudice because he believed the remaining claims were better suited to state court.

�Dann had no further involvement with the grandmother, Phillips, or his felony case,� wrote Boyko. �There was never an attorney-client relationship between Phillips and Marc E. Dann.�

However, in September, 2003, two months before any litigation was filed, Dann claimed credit for representing Phillips and defended Joltin to this reporter.

�I stand behind the decision [Phillips] made and the advice we gave him,� said Dann.

Then, defending the decision not to ask the court to vacate Phillips�s misdemeanor conviction on the grounds that the law he allegedly broke did not exist, Dann said, �We [Dann and Joltin] have never talked about a motion to vacate. It would just go back to Judge Gysegem anyway.�

At that time, Dann defended the decision he and Joltin made to advise Phillips to plead no contest to a crime he did not commit and take the negotiated four months in jail for the nonexistent �importuning� crime instead of going to trial.

According to Dann, Phillips would have been held an additional six months in jail on a probation violation--from the first �importuning� conviction--during the time it would have taken to defend him.

�It�s municipal court, and the idea is to keep him out of jail,� said Dann.

For this report, Dann was asked for additional comment beyond the brief written statement from his campaign.

He replied through his campaign communications director Alex Goepfert: �You have misquoted and misrepresented my statements on this matter from the very beginning. Any additional questions you may have, please submit them in writing.�

Three questions were immediately submitted, including what has been misquoted and misrepresented, and why it has taken almost three years for objections to be raised, and then only through a campaign intermediary.

Dann did not respond further.

Additionally, when Phillips appeared again in December, 2003 in municipal court, it was visiting Judge Thomas W. Townley from Niles, not Gysegem as Dann said, who vacated the first �importuning� conviction.

The second conviction was later vacated by the Eleventh District Court of Appeals.

Phillips� case continues in Trumbull County Common Pleas Court.

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