Hundreds of Ohio Defendants Arrested On Court Clerks’ Orders – Prosecutors and Judges bypassed

 By Dan Horn • enquirer.com • February 13, 2010

Police in Hamilton County have arrested hundreds of people in the past year because of a criminal complaint system that the county’s top prosecutor says is bad public policy and some judges say violates Ohio law.

 

The system has allowed court clerks – rather than prosecutors or judges – to approve and issue arrest warrants based on complaints from private citizens.

Those complaints have sent people to jail for domestic violence, theft and other misdemeanor offenses despite a 2006 Ohio law that requires a judge or prosecutor to review complaints before someone is arrested.

Some law enforcement officials say the lack of a review led to weak criminal cases that are more likely to be thrown out of court and to abuses by people looking to settle personal scores.

In some cases, Hamilton County Prosecutor Joe Deters said, people could end up in jail and be forced to defend themselves in court against “baseless charges.”

“You don’t know if they have an ax to grind or if it’s a neighborhood squabble, and then somebody gets arrested for it,” Deters said. “My feeling is, before someone is subjected to a physical arrest, someone in law enforcement should look at it and sign off on it.”

Officials at the Hamilton County Clerk of Courts office, which issues the arrest warrants, say they changed their policy on the complaints Jan. 14, a move they say came after months of discussion and about one week after The Enquirer requested public records about the system.

They say the previous warrant policy, which had been in place for at least a decade, was legal. But they now will require a judge or prosecutor to sign off on the complaints before a warrant is issued.

“This is just better procedure,” said John Williams, the county’s deputy clerk. “We want cases that are appropriately investigated to be filed with this office. It all relates back to having some level of investigation before it comes to us.”

An Enquirer review of the clerk’s records shows that hundreds of cases were filed under the old system in the past six months, and that dozens of them are still pending in Hamilton County Municipal Court.

Several municipal court judges have thrown out charges based on citizen complaints after concluding they violate the 2006 law that requires a prosecutor, judge or magistrate to review them.

The purpose of the law is to ensure “probable cause” exists to justify an arrest and there is enough evidence to go ahead with criminal prosecution.

“The law was changed so private citizens couldn’t cause a person to be arrested without a proper review,” said Municipal Court Judge Brad Greenberg. “Absolutely, it concerns me. Your concern is that someone has been charged or arrested with a crime and there is no basis for it.”

Christo Lassiter, a University of Cincinnati law professor, said that happened to him in 2008 when he spent several hours on Thanksgiving Day in jail because his ex-girlfriend, Devon Dullaghan, filed a citizen complaint that accused him of violating their child-custody agreement.

Dullaghan said she filed the complaint because Lassiter violated the agreement many times and she felt she had no other choice. Lassiter blamed Dullaghan for the dispute and said the “interference with custody” charge should never have been filed because he has custody of their 3-year-old daughter.

But because there was no review by a judge or a magistrate, he said, none of that information came out until he faced a criminal trial that threatened his reputation and career.

“In this system, until you get to trial, you have no way to get anyone to say, ‘Let’s take a look at this.’ It’s ridiculous,” said Lassiter, who last month sued the clerk’s office and other county officials over the citizen complaint system. “Any citizen who has a personal gripe could get an arrest warrant.”

Greenberg, the judge in Lassiter’s case, dismissed the charge last year after concluding it was without merit.

“I find absolutely no shred of evidence of any criminal behavior here,” Greenberg said at the time. “In fact, I think it’s outrageous that the criminal justice system would be used as a weapon between parents in a custody dispute.”

‘Not a lot of evidence’

As in Lassiter’s case, most citizen complaints filed with the clerk’s office start with a “citizen referral” from a police officer.

Referrals, once widely used throughout the county, gave police another option when dealing with a citizen who complained about being the victim of a misdemeanor crime. If the officer did not witness the alleged crime and didn’t have enough evidence to make an arrest, he or she could refer the person to the clerk’s office to fill out a complaint.

Cases typically involved feuding neighbors or couples accusing each other of harassment, petty theft, custody violations or vandalism.

“Officers get called to a lot of this stuff,” said Steve Barnett, spokesman for Hamilton County Sheriff Simon Leis, whose deputies stopped handing out citizen referrals last year. “It’s he said/she said. There’s not a lot of evidence.”

Even if they were short on evidence, citizens could take referrals from the police to Clerk of Courts Patricia Clancy’s office and sign criminal complaints themselves. The complaints then became the justification for issuing arrest warrants.

The problem, critics say, is that the clerk has issued hundreds of warrants in citizen complaint cases without first submitting them to a judge, magistrate or prosecutor for review. Such a review is not required for complaints signed by police.

“That hasn’t been happening,” said Donald Caster, a Cincinnati defense attorney who has challenged several citizen complaint arrests. “The statute says it must be reviewed.”

Court records show that between July and January the clerk issued warrants without a review almost 1,400 times. In many, the complaints were signed only by private citizens.

In July, the busiest month during the period surveyed by The Enquirer, police signed 16 of the 284 citizen referral complaints that resulted in warrants. The other 268 complaints were signed by a private citizen, but not by an officer.

While county prosecutors say the system needed an overhaul, they disagree with judges who have called it “contrary to law.” They say the rules that govern the courts allow the clerk to determine probable cause, even if the 2006 law says otherwise.

Charlie Rubenstein, the city of Cincinnati’s chief assistant prosecutor, said confusion over the legality should end now that the clerk’s office changed its policy. He said the policy didn’t change earlier because few in law enforcement realized the law changed in 2006.

“It sort of got enacted without anybody noticing,” Rubenstein said. “It doesn’t change anything. It’s more of a question of paperwork.”

More arrests, more worries

Concern over citizen complaints grew in the last year, especially when budget cuts killed a mediation program used to resolve many complaints.

A few years ago, a citizen referral from a police officer might end with the two parties settling their differences out of court. When mediation died, most of those referrals resulted in arrest warrants and criminal cases.

Deters became so concerned about citizen complaints that he sent a letter to police departments in July urging them to stop giving referrals. He said the cases often are weak because police were not willing or able to investigate the complaint themselves.

“Too often citizen referrals are used by officers as a means to end the complaints of citizens regarding the filing of charges that have very little merit,” Deters wrote. “Allowing the issuance of citizen referrals simply leads to the filing of baseless charges.”

The Enquirer’s review of July cases, the month Deters sent his letter, found judges later dismissed slightly more than half of them. Almost 30 percent of the cases are pending, while 19 percent have resulted in convictions.

Some say the problem of weak cases is compounded by the clerk of courts’ willingness to sign off on arrest warrants for almost every citizen complaint. Between July and January, clerks reviewed 1,415 citizen referrals to determine whether enough probable cause existed to issue a warrant.

They found that it did in 1,396 cases – or almost 99 percent of the time.

“The problem with the referral is it was being presented as the keys to the kingdom,” said Paul Laufman, a Cincinnati civil rights attorney. “All you had to do was walk down there and present an affidavit.”

Other large counties handle the cases differently, and get dramatically different results.

In Columbus, a city prosecutor oversees a 19-member “intake team” that reviews every criminal complaint, whether filed by a private citizen or a police officer. The team reviewed 6,529 citizen complaints in 2009 and filed criminal charges in just 620 cases, or less than 10 percent of the total.

“We have them all reviewed by a prosecutor. It’s a good practice,” said Lara Baker, chief prosecutor in Columbus. “I don’t think there’s any authority for a clerk to issue a warrant.”

Lassiter said if that had happened in his case, he would not have been arrested and would not now be suing the county in federal court. He said a judge should review all arrest warrants, even those signed by police.

“There has to be a system to weed that crap out,” he said. “You sure don’t want the criminal process being manipulated into being somebody’s muscle.”

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