March 31, 2006

Jailed under a nonexistent gay sex law, man sues

Ohio attorney general candidate is named
with judge and accuser

by Eric Resnick

Warren, Ohio--A gay man jailed for breaking a nonexistent sex law is suing the people involved, including a candidate for Ohio attorney general.

Keith Phillips of Youngstown filed suit March 22 against his former attorney Benjamin Joltin, Warren Municipal Judge Thomas P. Gysegem and Wayne Trimble, one of his accusers.

He is also suing Joltin�s boss, state senator and Democratic attorney general candidate Marc Dann.

The Eleventh Ohio District Court of Appeals opened the way for the suit in December when it cleared Phillips of all wrongdoing in the case.

Phillips, 19 at the time, was convicted twice in 2003 of violating Ohio�s importuning law, which had been struck down by the Ohio Supreme Court seven months earlier.

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.

Phillips served four months in jail, and did not discover there was no such law until after he was released.

His attorney Randi Barnabee of Bedford told the appeals court that her client was �failed at every level, and by everyone.�

The city of Warren, which prosecuted Phillips, did not file a brief in the appeals court or show up for oral arguments.

Phillips told to take plea bargain

Phillips� new suit, which was filed in Trumbull County Common Pleas Court, follows a federal suit Barnabee filed in 2003. That action was dismissed because the judge thought the matter was better suited to state court.

The federal court also dismissed a malpractice complaint against Dann, saying that he didn�t represent Phillips.

The new suit puts Dann back in, this time accusing him of fraud.

Dann�s employee Joltin represented Phillips in the second importuning case, and convinced him to take a plea bargain with a jail term after telling him that Gysegem �has a hard-on� to convict him.

Phillips says in court papers that Joltin came to that conclusion because Dann had met with Gysegem and counseled him on how to handle the case before giving it to Joltin.

The fraud claim alleges that Dann misrepresented or concealed his firm�s ethical obligation against representing Phillips due to the conflict of interest produced by the one-sided or �ex-parte� meeting with Gysegem.

Instead, when Phillips� grandmother, Barbara Berndt, approached Dann to represent Phillips, he told her he couldn�t do it himself, then gave it to Joltin.

In subsequent interviews with this publication, Dann used the pronoun �we� to describe decisions that he and Joltin made about representing Phillips.

Dann has repeatedly said that he and Joltin did what they thought was best to give Phillips the least jail time possible.

Two �importuning� convictions

The case stems from a pair of incidents in late 2002 and early 2003.

In the first, Phillips, who was 19 and openly gay, had been talking to a 17-year-old co-worker who was asking him personal questions and showing interest in his sexual orientation.

The youth�s parents learned of it, and had police investigate.

Phillips was charged and prosecuted for importuning by Warren prosecutor Tracie Rose. This was seven months after the state law had been declared unconstitutional and the Warren city council had repealed its identical ordinance.

Phillips appeared before Gysegem without a lawyer, and without knowing that there was no such law, pleaded no contest to the charge.

Judges have an ethical obligation to consider both the facts and the applicable law when accepting a no-contest plea. Gysegem found Phillips guilty and gave him a suspended sentence, probation and a $600 fine.

Evidence would have cleared him

Weeks after this conviction, a 14-year-old Warren boy said that a man had asked him if he wanted oral sex. Two days later, he pointed out Phillips� passing car to his stepfather Wayne Trimble, and they gave chase and pulled him over. Phillips says that Trimble, also named in his suit, assaulted him.

Police and Warren prosecutors Greg Hicks and Tracie Rose had Phillips arrested. They charged him with violating another part of the importuning law about asking minors for sex, which is still in effect.

However, it wasn�t Phillips. His time card and four co-workers testify that he was working when the alleged incident happened. The car described by the youth wasn�t Phillips� car, and the boy�s description of the man does not resemble Phillips.

This time Phillips had a lawyer: Joltin. But he and Dann didn�t use the evidence to clear Phillips. Instead, he was told that the jail time for violating his probation from the first conviction was longer than the 120 days he would get if he took a second conviction on a lesser charge--the nonexistent adult importuning law, again.

Phillips says that Joltin told him, �There are some things not worth fighting for.�

Dann and Joltin knew of the first importuning charge, and should have been aware that the law had been struck down months earlier.

Judge accused of slander

When Gysegem was asked why he convicted someone of a law that didn�t exist, he told the Warren Tribune, �It�s not my job to go out and find out this stuff out (sic). That�s up to [Phillips�] counsel to do that.�

Then he said, �He has a habit of pulling his pants down around young boys, and as far as I�m concerned that�s still illegal in the state of Ohio.�

That comment has made Gysegem a defendant for defamation by slander.

In addition to assault, Trimble is being sued for battery and false imprisonment.

Joltin faces three counts of legal malpractice.

Dann�s fraud charge alleges that he benefited monetarily from his part in securing Joltin to represent Phillips.

Phillips is also working with a legal ethics specialist to file complaints against Dann, Joltin, Gysegem, Rose and Hicks with the Ohio Supreme Court Disciplinary Counsel.

The Disciplinary Counsel cannot act on the complaints while this suit is pending, but later investigations could result in disbarment.

Barnabee is also preparing to move part of the case to the special Court of Claims in Columbus, which will allow for suing the city and state for false imprisonment and monetary damages.

Ironically, if Dann is elected attorney general, it would be up to him to represent the state in that action.

Barnabee said the timing of the suit has nothing to do with Dann�s campaign.

�March 22 was the last day the suit could be filed. That was the determining factor,� Barnabee said.

Dann named Hicks as one of two of his campaign managers on March 24.

Dann�s campaign would not comment on the suit. Dann did not return multiple calls.

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