Unsealed Documents Spell Out Sheriff Subpoena Battle

By
Susan Tebben - Athens Messenger staff reporter

Dateline
Updated Tue, Feb 11, 2014 2:33 pm
Photo Credit: 
Southeastern Ohio Regional Jail
Athens County Sheriff Pat Kelly was booked and released from the Southeastern Ohio Regional Jail on Feb. 11

The same day that Athens County Sheriff Patrick Kelly was arraigned in Athens County Common Pleas Court on a 25-count indictment, documents were released detailing an ongoing battle between attorneys over documents in the case.

Special Prosecutor James Roberts filed a motion in January to compel the Athens County Sheriff’s Office to comply with requests for multiple records, a request that attorneys for the sheriff’s office argued was “oppressive.”

Roberts asked that the court order Kelly to comply with the subpoenas because a timely motion has not been made by the sheriff’s office and the state’s subpoenas “are not unreasonable or oppressive.”

A compliance date of Nov. 8 was scheduled for the sheriff's office to respond to the subpoenas.

After his arraignment Monday, Kelly told The Messenger that the sheriff’s office had been in compliance with the requests of the attorney general's office, but that the requests were “cumbersome.”

“It’s difficult to document and scan 15,000 papers ... with a staff of four,” Kelly said, although he declined to explain what the documents were.

Roberts, in his motion, said Kelly should have filed a motion to justify non-compliance if he believed the request was unreasonable. Even if Kelly had filed a motion to reject or change the subpoenas, though, he and his office had no grounds to do so, according to the motion.

“Not only are the State of Ohio’s subpoenas not unreasonable or oppressive, no privilege exists to withhold the requested material,” the motion stated.

The sheriff’s office and Kelly would hold the burden to prove the subpoenas were unreasonable, Roberts argued, something they have not done.

“Athens County Sheriff Patrick Kelly has not provided a single justification for his non-compliance, nor does any justification exist,” Roberts wrote in the motion.

With no communication between the attorney general's office and the counsel for Kelly, there was “no other option” but to file a motion to compel, according to the motion.

Visiting Judge Patricia A. Cosgrove filed an order on Jan. 24 ordering the sheriff’s office to respond to all outstanding subpoenas, based on the arguments of Roberts’ motion.

“The court finds that the Athens County Sheriff’s Office has (failed) to comply with such subpoenas and failed to offer a compelling reason not to disclose the requested information,” Cosgrove wrote in the order.

The judge found no hearing necessary at the time and required the sheriff’s office to comply by Jan. 30.

The prosecutors in the case filed a request last Thursday for an oral hearing when Kelly still refused to comply, according to the motion by Roberts and fellow prosecutor William F. Schenck.

A motion in opposition of an oral hearing was filed by T. Allan Regas, who was appointed to represent Kelly in his official capacity, Cosgrove said in court on Monday.

A motion filed Friday, argues that the sheriff’s office has “made efforts (to) respond to the subpoenas issued in this matter, despite the fact that they are unreasonable and oppressive and are duplicative of materials taken by the state during the search warrants…”

The sheriff’s office was told “what was provided is not good enough,” the motion argued.

“The state of Ohio has been on a fishing expedition in connection with these subpoenas, repeatedly seeking documents that it is already in possession of, or demanding that the sheriff’s office compile information for the state in a format which does not already exist, rather than providing actual documents,” wrote Nora Graham, co-representative of the sheriff’s office, in the motion.

Graham also argues that the warrant executed on June 7 by the Bureau of Criminal Identification and Investigation “provided BCI complete access” to the sheriff’s office, including computer and paper files. Investigators were not restricted from any records or documents, Graham argues.

In August and October, eight more subpoenas came from BCI, one requesting documentation on firearms obtained, held in evidence, disposed of, “currently on hand” or sold by the sheriff’s office.

A second subpoena asked for records relating to concealed carry weapon licensure and applications, a third asked for records of “actual hours worked at the Athens County Sheriff’s Academy by the Athens County Sheriff, any and all Athens County Sheriff’s Office deputies” and sheriff’s office employees and instructors at the academy.

Another subpoena asked for the “cashbook required to be held by the Athens County Sheriff” pursuant to the Ohio Revised Code, with records related to Jan. 1, 2009 to the present.

The sheriff’s office has continued to attempt to comply to the request, Graham wrote, but due to the volume of documents, has not completed the request.

“Counsel contacted the state on multiple occasions regarding the oppressive and burdensome nature of the subpoenas in an attempt to limit the requests and reach a resolution on the issue and avoid filing a motion to quash,” the motion stated.

But the prosecution responded in a brief Feb. 10 that it only made the motion to compel “after having not received a single call or piece of correspondence from counsel for the ACSO, and further having not received a single additional document responsive (to the) subpoenas” since the court order filed Jan. 23.

Roberts argued that suggesting the state should have seized the material as part of the search warrant is not appropriate, as “the target of an investigation does not get to dictate the manner in which the state acquires evidence.”

“This avoids, among other things, the recipient coming back and saying he has more stuff, but the state failed to find it,” Roberts wrote.

While Roberts confirmed that the sheriff’s office suggested BCI agents come to the office to copy portions of material, he alleges Kelly’s attitude toward the agencies investigating the case made that a question of safety.

“…Sheriff Patrick Kelly has widely publicized his strong disdain for the Attorney General and the Ohio Bureau of Criminal Identification and Investigation in comments to the news media, comments on his Facebook page, as well as in comments to others in the community,” Roberts wrote. “The State is not required to take chances with regard to the safety of its investigators … merely because the ACSO does not want to make copies of documents…”

The attorneys for the sheriff’s office requested that the court wait until a decision was made regarding Kelly’s possible suspension before determining whether the remaining records should be provided. 

The prosecution, however, said this shouldn’t be a determining factor. A suspension would not make the records easier to obtain or copy, Roberts argued.

“The only possible legitimate reason for this request would be if the sheriff were taking steps himself to obstruct or delay the ACSO from complying with the state’s subpoenas,” Roberts concluded.

A show cause hearing was scheduled for Feb. 28 by Cosgrove at Kelly’s arraignment.

The special grand jury that was convened in the case is set to expire on Feb. 13, but the prosecutors asked for an extension if a hearing could not be scheduled by Feb. 10.

Cosgrove did not address the grand jury request at the arraignment, and nothing in the released records indicated that the request had been granted. However documents relating to the grand jury can still be filed.

 

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