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Tuesday, Sept. 14, 2010

Michael Dean Scott v. Mark Houk, Warden, Case no. 2009-1369
U.S. District Court for the Northern District of Ohio

State of Ohio v. Annabell B. Poole, Case no. 2009-2110
11th District Court of Appeals (Ashtabula County)

Disciplinary Counsel v. Scott Pullins, Case no. 2010-0851
Knox County

Federal Insurance Company, American Alternative Insurance Corporation v. Executive Coach Luxury Travel et al., and Feroen J. Betts, etc., et al., Case no. 2009-2307
3rd District Court of Appeals (Allen County)

Disciplinary Counsel v. Richard Todd Ricketts, Case no. 2010-0806
Franklin County


When and By What Legal Action May a Capital Offender Challenge the State's Current Execution Protocol?

Michael Dean Scott v. Mark Houk, Warden, Case no. 2009-1369
U.S. District Court for the Northern District of Ohio

ISSUE:  In what judicial forum and through what type of court proceeding must a defendant who is under a death sentence in Ohio pursue a constitutional challenge to the specific protocol that is being used by the state to execute death sentences at the time of that defendant’s scheduled execution?

(NOTE:  This case does not ask the Court to rule on the constitutionality of the lethal injection protocol currently used by Ohio in executing death sentences. It asks the Court to clarify at what point in the judicial process, and through what type of court proceeding, persons facing a death sentence in Ohio may pursue a constitutional challenge to the specific execution protocol that is in use by the state at the time of their scheduled execution.)

BACKGROUND:  Michael Dean Scott of Canton received a death sentence for the aggravated murders of Dallas Green and Ryan Stoffer in separate incidents that took place 19 days apart in August and September of 1999. Scott appealed to the Supreme Court of Ohio, which affirmed his convictions and death sentence in January 2004. Scott also filed an unsuccessful petition for postconviction relief in state court under R.C. 2953.21.  He twice sought but was denied review by the U.S. Supreme Court of the state court proceedings and judgments in his case.

Most recently, Scott has pursued a federal habeas corpus action seeking to overturn his convictions and/or his sentence in the U.S. District Court for the Northern District of Ohio. As part of that proceeding, the district court was required to determine whether Scott had exhausted all of his state remedies, or if he remained eligible to pursue a state court action challenging the constitutionality of Ohio’s current lethal injection protocol under the Eighth Amendment prohibition against cruel and unusual punishment. In order to resolve that issue, the district court asked the Supreme Court of Ohio to answer the following certified question of state law: “Is there a post-conviction or other forum to litigate the issue of whether Ohio’s lethal injection protocol is constitutional under (the U.S. Supreme Court’s 2008 decision in) Baze v. Rees, or under Ohio law?”  The Court has agreed to answer the certified question.

Attorneys for Scott assert that because Ohio, like other states, continues to make periodic changes in the specific practices and protocols it follows in executing death sentences, it is impossible for capital murder defendants to know at the time of their original trial, at the time they file their direct appeal with the Supreme Court, or at the time they file a petition for postconviction relief, what specific execution protocol will be in place at the time of their prospective execution, which may be  several years in the future. Thus, they say, it is impossible for a capitally sentenced offender to raise and develop fact-based constitutional objections to the specific procedures the state will use in executing his sentence until after the defendant has exercised all of his state and federal remedies and a purported final execution date has been set.

At that point, they argue, the proper forum for a defendant to pursue an Eighth Amendment challenge to the state’s then-current execution procedures is a civil declaratory judgment action that allows for discovery and enables the trial court to conduct a thorough exploration of factual issues. Scott also argues that while a general challenge to the death penalty itself as “cruel and unusual punishment ” must be raised prior to the defendant’s trial for a capital crime or waived thereafter, defendants should not be required to raise the constitutionality of the state’s execution procedures at trial or to preserve that issue on direct appeal because the issue is not “ripe” for adjudication until after the defendant’s state and federal appeals of his death sentence have been exhausted and he is actually faced with a specific execution protocol.

Attorneys for the state agree that a declaratory judgment action after all state and federal appeals of an offender’s death sentence have been exhausted is an appropriate forum for adjudicating that person’s constitutional challenge to the procedures that would be employed in executing him. They argue, however, that defendants should be required to assert a “method of execution” constitutional claim at the time of trial, and to preserve that issue by including it in the direct appeal of their death sentence, in order to be entitled to later raise it in a declaratory judgment action.

They point out that during pretrial proceedings in his case Scott raised both a general claim that the death penalty itself is cruel and unusual, and a specific constitutional claim that Ohio’s method of lethal injection is cruel and unusual. Because the trial court rejected both of those claims, and Scott failed to identify the denial of his lethal injection claim as error in his direct appeal to the Supreme Court, the state contends that the execution protocol issue is precluded from any future litigation in his case under the legal doctrine of res judicata  (i.e. that decided and unappealed legal questions must be left undisturbed). On that basis, they argue that the method of execution issue should not be revisited in any new proceeding in Scott’s case, including a declaratory judgment action.

Contacts
Benjamin C. Mizer, 614.466.8980, for Warden Mark Houk and the State of Ohio.

David L. Doughten, 216.361.1112, for Michael Dean Scott.

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Must Court Advise Witness That She May Refuse to Answer Trial Question to Avoid Self-Incrimination?

When Called as Defense Witness in Co-Defendant’s Trial

State of Ohio v. Annabell B. Poole, Case no. 2009-2110
11th District Court of Appeals (Ashtabula County)

ISSUE:  When co-defendants are charged with different crimes arising out of the same events and are tried separately, after one co-defendant has entered a guilty plea to charges brought against her and been sentenced, if that person is later called  as a witness at the second co-defendant’s trial, does the judge have a duty to warn the first co-defendant that she has a Fifth Amendment right to refuse to answer questions during her testimony at the co-defendant’s trial if her answers could incriminate her for an offense that was not included in her earlier guilty plea or dismissed as part of a plea bargain?

BACKGROUND: As the result of a traffic stop in which she was riding as a passenger in a truck driven by Robert Coffman, Annabell Poole of Ashtabula was indicted on criminal counts of illegal assembly or possession of chemicals for the manufacture of drugs, three counts of possession of drugs and one count of possessing criminal tools.  Coffman was charged with a single count of possession of methamphetamine based on drug residue found in the pocket of the coat he was wearing at the time of the traffic stop. The two defendants were tried separately.

In exchange for dismissal of the other charges for which she was indicted, Poole entered a guilty plea to one count of possession of chemicals for the manufacture of drugs and was sentenced to two years in prison.

After her trial was completed, Poole was subpoenaed to testify as a defense witness at Coffman’s trial.  Prior to her testimony, the judge did not advise Poole that under the Fifth Amendment to the U.S. Constitution she could assert her right to refuse to answer a question posed to her by either the state or by Coffman’s attorney if  doing so would incriminate her in a crime for which she had not already been convicted or for which the charge had been dismissed.  Following a line of questions by defense counsel about the coat Coffman was wearing at the time of the traffic stop, Poole first admitted that the coat worn by Coffman in which the methamphetamine was found was hers; and then in response to a follow-up question specifically asking about ownership of the drug, admitted that the drug found on Coffman was hers. Based on Poole’s testimony, Coffman was acquitted. 

Shortly thereafter, the Ashtabula County prosecutor sought and obtained a new indictment against Poole, charging her with possession of the methamphetamine found in her coat. During pretrial proceedings on that charge, Poole’s attorneys filed a motion to bar the state from using her statements as a witness during the Coffman trial as evidence against her, on the basis that the trial court should have informed her of her Fifth Amendment right to refuse to answer to avoid self-incrimination, but failed to do so. The trial court granted the motion to suppress Poole’s statements made during the Coffman trial on Fifth Amendment grounds.

The state appealed the trial court’s ruling. On review, the 11th District Court of Appeals reversed and remanded the case for further proceedings. The court of appeals held that, because Poole had already entered a guilty plea and been sentenced prior to being questioned at Coffman’s trial, she was no longer a “co-defendant” in the case, but was merely a witness, for whom the trial court had discretion either to give or not give a Fifth Amendment warning based on the court’s perception that there was an immediate danger that she would give a self-incriminating answer without understanding her right not to do so. Poole sought and was granted Supreme Court  review of the 11th District’s decision.

Attorneys for Poole urge the Court to overrule the 11th District and reinstate the trial court order suppressing her self-incriminating testimony at the Coffman trial. They point to federal and state court decisions including the Supreme Court of Ohio’s 1976 holding in State v. Schaub that a judge “has a duty to safeguard a witness’ constitutional rights by informing the witness of the right not to incriminate herself.”  In this case, they assert, the line of questioning adopted by Coffman’s attorney made it clear that he was attempting to show that the coat worn by Coffman at the time of the traffic stop, and by implication the drugs found in the pocket of that coat, belonged to Poole rather than Coffman.  Once Poole admitted that the coat was hers, they contend, the trial judge should have interrupted to advise Poole that she could refuse to answer additional questions if she feared that her answers would incriminate her for a new offense not covered by her guilty plea or plea bargain. By failing to take that action, they say, the trial court abused its discretion and rendered Poole’s subsequent self-incriminating statement inadmissible as evidence against her.

Attorneys for the state respond that the court decisions cited by Poole addressed cases in which a co-defendant who was still in jeopardy in a case is called as a witness for or against a co-defendant.  In this case, they argue, Poole ceased to be a co-defendant in the crime charged against Coffman when she entered a guilty plea and was sentenced.  They urge the Court to affirm the 11th District’s holding that Poole was merely a witness at Coffman’s trial, and therefore the court had discretion to advise her about her right against self-incrimination under the Fifth Amendment. They point out that neither the judge nor the prosecutor in the case had any reasonable basis to anticipate that Poole was about to blurt out a statement admitting ownership of the drugs found on Coffman’s person, and therefore the trial court did not abuse its discretion by failing to interrupt the proceedings to advise her of the privilege against self-incrimination.

Contacts
Shelley M. Pratt, 440.576.3662, for the state and Ashtabula County Prosecutor's Office.

Richard R. Danolfo, 440.998.2628, for Annabell Poole.

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Attorney Discipline

Disciplinary Counsel v. Scott Pullins, Case no. 2010-0851
Knox County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Mt. Vernon attorney Scott A. Pullins be suspended indefinitely for multiple acts of professional misconduct including making unsupported accusations of wrongdoing by two Knox County judges whom Pullins sought to prevent from hearing court cases in which Pullins, his clients and members of his family were participants.

The board also found that Pullins violated state attorney discipline rules by abusing his status as an attorney to obtain subpoenas that purported to seek information relevant to a pending court case but in fact attempted to compel persons who had no connection with that case to disclose the identities of persons who had made Internet postings that were critical of Pullins and his law practice.

In its report to the court, the disciplinary board observed that while the conduct underlying each of the six counts against Pullins, taken as isolated incidents, might not warrant a severe sanction, Pullins’ repeated and persistent abuse of the legal process over a period of several years and his reckless accusations against judges and others who disagreed with him demonstrated disrespect and misunderstanding of the proper practice of law, and warrant an indefinite suspension from practice.

Pullins has filed objections to the board’s findings and recommended sanction.  In them, he argues that the affidavits of bias and prejudice he filed against the Knox County judges to whom his cases were assigned and the subpoenas he obtained to compel discovery in those cases were not grounds for discipline against him because there was a reasonable factual and legal basis for each of his claims. If the Court should agree with any of the board’s findings that he committed disciplinary infractions, Pullins argues that a public reprimand rather than a license suspension would be the appropriate sanction for that misconduct.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Scott A. Pullins, pro se, 740.392.3505.

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Is Driver of Chartered Bus Insured Under 'Hired Vehicle' Coverage in College's Insurance Policy?

Bluffton University Seeks Coverage for Fatal 2007 Bus Crash

Federal Insurance Company, American Alternative Insurance Corporation v. Executive Coach Luxury Travel et al., and Feroen J. Betts, etc., et al., Case no. 2009-2307
3rd District Court of Appeals (Allen County)

ISSUE:  When an auto insurance policy issued to a university extends liability coverage to any person operating “with permission” a vehicle  that is “owned, hired or borrowed” by the university, does that policy language  provide coverage for injuries resulting from a traffic accident in which a bus driver employed by a charter bus company was operating the company’s bus while it was under charter by the university?

BACKGROUND: In March 2007, five baseball players from Bluffton University, the bus driver and the bus driver’s wife  were killed and others were injured when a chartered bus in which they were traveling to a Florida tournament crashed in Atlanta, Georgia. The university’s baseball coach had made arrangements to charter the bus from Executive Coach Luxury Travel, Inc. and had agreed to Executive Coach’s suggestion that one of its drivers known to the coach, Jerome Niemeyer, be assigned as the driver for the Florida trip.

At the time of the crash, the university was covered by a primary auto insurance policy issued by the Hartford Insurance Company, an “umbrella” policy issued by American Alternative Insurance Company and an additional excess liability policy issued the Federal Insurance Company. The terms and conditions of coverage under the umbrella and excess liability policies were the same terms and conditions of Bluffton’s primary auto insurance policy with Hartford. The Hartford policy included in its definition of an insured person, anyone “while using with (the university’s) permission” a covered vehicle that the university “owned, hired or borrowed.”

American Alternative and Federal Insurance both sought declaratory judgments that their policies did not provide coverage for the injuries suffered by the victims of the bus accident. The Allen County Court of Common Pleas granted summary judgment in favor of the insurers, holding that neither Niemeyer nor Executive Coach qualified as “insureds” under the university’s insurance policies because the university did not own and had not “hired” or “ borrowed”  the bus involved the accident, but  rather had contracted with Executive Coach to provide transportation services in a vehicle owned by Executive Coach and driven by one of its employees. The accident victims and families of the deceased students, who were permitted to intervene in the declaratory judgment action as interested parties, appealed the trial court’s judgment. On review, the 3rd District Court of Appeals affirmed the grant of summary judgment in favor of the insurers.

The accident victims sought and were granted Supreme Court review of the 3rd District’s ruling.

Attorneys for the appellants argue that the lower courts erred in finding that Niemeyer did not qualify as an insured party under the “hired vehicle” provision in the university’s insurance policies.  They contend that Bluffton’s contract with Executive Coach granted the university exclusive use of the company’s bus for the duration of the baseball team’s Florida trip, and therefore constituted “hiring” the bus under the ordinary meaning of that term. They also assert that because the selection of Niemeyer as the driver on the Florida trip was subject to approval by the baseball coach, Niemeyer was driving the bus at the time of the accident “with the permission” of the university’s representative.  Because both the hired vehicle and permission requirements were met, they urge the Court to find that the accident victims are entitled to seek recovery under the university’s insurance policies.

Attorneys for the insurance companies argue that prior court decisions interpreting “hired vehicle” clauses in auto insurance policies have held that, in order to qualify for coverage, the policyholder must 1) have had possession and control of the vehicle involved in an accident; and 2) have had the authority to permit or prohibit the driver from operating the vehicle.  In this case, they assert, the trial and appellate courts correctly held that Bluffton did not exercise possession or control over the bus in the way that a person possesses and controls a rented or “hired” vehicle, but merely contracted with Executive Coach to provide transportation services. They also argue that, simply because the charter company consulted the baseball coach before assigning one of its drivers to the Florida trip, that courtesy did not confer on Bluffton the power to grant or deny “permission” for Niemeyer to operate one of his employer’s buses.

Contacts
Steven B. Ayers, 614.229.4535 and D. John Travis, 216.241.5310, for American Alternative Insurance Corp and Federal Insurance Co.

James E. Yavorcik, 419.243.7243; Steven R. Smith, 419.243.2100, for the Appellants (among multiple counsel).

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Attorney Discipline

Disciplinary Counsel v. Richard Todd Ricketts, Case no. 2010-0806
Franklin County

The Board of Commissioners on Grievances & Discipline has recommended that the license of Pickerington attorney Richard T. Ricketts be suspended for six months, with the entire term of suspension stayed, for engaging in misleading or deceptive conduct in conducting the liquidation of a client’s business.

The board found the Ricketts violated a state attorney discipline rule when, prior to initiating the business liquidation, he created mortgages on behalf of the client’s already-secured creditors against two pieces of previously unencumbered business property despite the facts that the creditors named as mortgagees did not request those mortgages and were not notified of their existence. The board also found that Ricketts acted improperly when he later prepared and filed a “release of mortgage” notice with the Marion County Recorder certifying that the debt underlying one of the unsolicited mortgages had been satisfied despite the mortgagee’s refusal to file such a release.

Ricketts has filed objections to the board’s findings of misconduct and recommended sanction. He argues that creating the unsolicited mortgages was part of a legally permissible strategy to encourage an orderly liquidation of his client’s property and discourage individual creditors from a “race to the courthouse” to assert competing claims against his client’s unencumbered property.  He also contends that his action in filing a “release of mortgage” notice with the recorder was not unethical because his filing did not contain any false or misleading information,  the mortgagee had verbally acknowledged  that the debt secured by the mortgage had been fully satisfied, and the mortgagee’s refusal to verify that fact in writing by filing a release with the recorder had created an imminent risk of financial  harm to his client.

The Office of Disciplinary Counsel has filed a response to Ricketts’ objections.  They urge the Court to affirm the disciplinary board’s findings that Ricketts’ filing of mortgages against his client’s unencumbered property on behalf of already-secured creditors who did not request and were not notified of those liens intentionally created a false impression of debt that did not exist. They also argue that, regardless of the actual satisfaction of the underlying debt or the specific wording of the “release of mortgage” notice filed with the county recorder by Ricketts, the recorder accepted that filing under the false assumption that it was being filed  on behalf of the mortgage creditor, because there is no authorization in state law for a mortgage debtor to file a “release” removing a lien from its own title to a piece of property.

Contacts
Jonathan E. Coughlan, 614.461.0256, for the Office of Disciplinary Counsel.

Alvin E. Mathews Jr., 614.227.2312, Richard Ricketts.

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.