April 21, 2006

Jail for nonexistent crime is flash point in AG debate

by Eric Resnick

Cleveland--The matter of a gay man who spent four months in jail for a non-existent sex crime has become a flash point in the Democratic primary race for Ohio attorney general.

The race between Marc Dann and Subodh Chandra turned bitter at a debate at the Cleveland City Club April 17 when the subject came up.

Dann is a state senator from Youngstown. Chandra is the former Cleveland law director. They are seeking the May 2 nomination to face Republicans Betty Montgomery or Tim Grendell in November.

About 90 people heard the candidates criticize the last two Republicans who have held the post, and accuse them of contributing to the corruption in state government. Both pledged to do better if elected.

But the matter of Keith Phillips of Youngstown was raised by Chandra, questioners in the audience and the media, causing Dann to become noticeably irritated and defensive.

Phillips was represented by Dann�s employee Ben Joltin when he was counseled in 2003 to plea-bargain to a law that had been struck down as unconstitutional by the Ohio Supreme Court, then repealed.

The �importuning� law, voided by the court in 2002, had made it a crime to ask someone of the same sex for sex, if it might offend them. Phillips, with no lawyer, had already been convicted once for breaking the nonexistent measure.

�We better have an honest conversation about this right now,� said Chandra. �[Dann] could not become a federal attorney with a Supreme Court reprimand and a case where someone went to jail for four months for a nonexistent crime.�

Chandra, a legal ethics professor at Case Western University, told the City Club he could not endorse Dann if he loses the primary because of Dann�s conduct in the Phillips case.

That position cost Chandra a co-endorsement by the Ohio Democratic Party. Dann, their endorsed candidate, said he would endorse Chandra.

�How do you choose your lawyer?� Chandra said, attempting to explain why Ohioans should care about the race.

Dann then criticized Chandra for a �cowardly decision to attack me when I couldn�t respond,� saying he is �proud of his 15 years as a lawyer.�

�I made mistakes,� said Dann, �then I took responsibility and made them right.�

Dann was reprimanded by the Ohio Supreme Court in 2004 over an error in a spousal support case.

Phillips� case is an issue in the race because of Dann�s involvement in it, and because Phillips has pledged to file his own complaint with the Supreme Court that could get Dann disbarred.

Phillips has previously filed two suits against Dann. The first, for legal malpractice, was dismissed last year by a newly appointed federal judge who had not overseen the case from the beginning. He dismissed it without hearing any evidence, after Dann claimed he had nothing to do with the case.

In the suit, Dann told the court �nothing occurred in the brief transaction between [Phillips� grandmother] Ms. Berndt and Marc Dann that could reasonably lead Ms. Berndt to believe that Dann was [Phillips�] legal counsel or that Dann would personally represent Plaintiff in this matter.�

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� earlier �importuning� 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.

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 instead of going to trial.

According to Dann, Phillips would have been held six more months in jail on a probation violation from the first conviction while the second case was defended, which Dann contended made his and Joltin�s counsel good advice.

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

Dann�s decision to give Phillips� case to his employee was, by his own admission, due to his belief that he could not do it because the judge had a conversation with him about what to do with Phillips.

The first suit, and a second one last month in which Phillips accused Dann of fraud, each pointed to the code of legal ethics which disqualifies an entire law firm from a case if one member is disqualified from it.

Phillips dismissed the second suit after being threatened by Dann and his attorney, in favor of a faster resolution to the rest of the case against other defendants, and of the bar complaint against Dann.

During that negotiation, Dann refused to return the $2,000 Berndt paid him for Phillips� defense.

Dann told the City Club audience that two courts had said he did nothing wrong.

Chandra countered that the dismissals were �legal technicalities.�

Dann does not explain the difference between his September 2003 comments and what he told the court. Instead, he claims that Phillips and this newspaper are being directed by the Chandra campaign, and says the whole incident never happened.

�It�s a flat lie. A non-story,� said Dann, interrupting Chandra�s comment to a City Club questioner about the matter.

Chandra then turned to Dann and asked, �What part?�

�All of it,� said Dann. �It�s all a lie and I think you should stop.�

Phillips knows of Chandra, but has never met nor spoken to him.

Phillips� attorney Randi Barnabee says she may have spoken to Chandra once, about an unrelated case where Barnabee represented a client who sued the city of Cleveland.

Chandra says Barnabee didn�t return his calls in connection with that case, and he has never spoken to her.

Chandra learned of the matter reading the Gay People�s Chronicle.

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

For all that time, Dann has never called this reporter to task for what has been reported until the matter came up during this campaign.

�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,� responded Dann through his campaign communication director Alex Goepfert to a request for comment after the fraud charge was dismissed.

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

To date, Dann has not responded further.

But at the City Club, Dann said, �I see Eric Resnick of the Gay People�s Chronicle sitting at your [Chandra�s] table, and that�s where he belongs.�

The table was unmarked and had supporters of both candidates seated at it. It was at a good angle for photos.

Phillips� suit is still pending in Trumbull County Common Pleas Court. Joltin is one of the defendants.

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