Dann says Phillips can't sue him for kid-sex remark
Warren, Ohio--Lawyers for an Ohio attorney general candidate say that a gay man represented by their client�s law firm harmed himself by getting indicted, and now can�t sue for defamation.
Keith Phillips of Youngstown spent four months in jail in 2003 for a nonexistent gay sex crime while represented by State Sen. Marc Dann and his employee Benjamin Joltin.
Phillips, then 19, was twice found guilty of �importuning�--asking someone of the same sex for sex--months after the Ohio Supreme Court had struck down the law against it.
For the first conviction, he had no lawyer. In the second, Joltin advised him to plead guilty to the nonexistent misdemeanor rather than make a case against a felony charge with the same name that involves a minor--although Phillips� time card showed him at work when the incident occurred and neither he nor his car matched the boy�s descriptions.
An Ohio appeals court later cleared Phillips of all wrongdoing, and he has sued several of the people involved. Dann was dismissed from a malpractice suit last year. Another one, for fraud, was dropped by Phillips.
The case came up during an April 17 debate between Dann and his Democratic primary opponent. Afterward, Dann told a reporter for the daily Warren Tribune Chronicle, �The fact is that what we were facing at the time is the fellow was charged with a felony, trying to expose himself sexually to a child.�
The newspaper printed the quote the next day, and Phillips sued Dann for defamation by slander in Trumbull County Common Pleas Court.
Dann�s attorney John O�Neil responded to the suit with a motion to dismiss it on May 18, saying that �it was [Phillips�] public indictment for felony importuning, and not Mr. Dann�s alleged defamatory statement, that proximately caused any injury to [Phillips].�
O�Neil said the slander suit �must be seen for what it really is--nothing more than another attempt by Plaintiff and his counsel to try to prosecute Mr. Dann for legal malpractice, which has already been dismissed twice, and to harass and maliciously attack Mr. Dann�s while he seeks election as Ohio�s Attorney General.�
O�Neil also argues that Dann was just confused about whose body parts would be exposed when he spoke to the reporter.
The felony importuning law that Phillips was charged with breaking prohibits adults asking minors for sex. It is a verbal offense only and other laws cover other acts.
�Dann stated that [Phillips] was charged with �trying to expose himself sexually to a child� as oppose to the fact that [Phillips] was charged with trying to get the child�s cloths off so that he could suck his dick,� argues O�Neil. (The typos are his.)
�Unbelievably, [Phillips] claims he was defamed by Mr. Dann for being confused as to whose cloths [Phillips] was trying to remove when he solicited oral sex to a minor,� O�Neil continues.
But most of the motion is based in O�Neil�s belief that it was the indictment, not Dann�s statement to the newspaper, that caused Phillips harm.
�Dann�s statement at the Cleveland City Club told the public no more than the indictment itself . . .� argues O�Neil.
Phillips� attorney Randi Barnabee replied to O�Neil�s motion on June 20, arguing that the slander suit �is based solely upon new, subsequent, and recent defamatory behavior by [Dann] toward [Phillips].�
Barnabee said O�Neil�s statement about Dann�s confusion as to whose clothes would come off is �absurd.�
�Ohio�s importuning statute deals only with verbal offers of sex and does not address any other conduct of any kind,� wrote Barnabee.
�Exposing one�s self to a minor does not fall under the importuning statute in any way,� argued Barnabee. �On the contrary, it is an entirely separate crime that would qualify either as attempted unlawful sexual conduct with a minor . . . or attempted gross sexual imposition.�
�[Phillips] was never charged under either statute--or under any other statute, either,� she wrote.
�Far from causing only incremental harm, [Dann�s] defamatory statements damaged [Phillips�] reputation by falsely stating that [Phillips] was indicted for a more serious felony . . . than the crime under which he was actually indicted.�
The case is before Judge John M. Stuard, who has so far issued no rulings.
Phillips is also suing the judge that convicted him for an earlier remark to the Warren Tribune Chronicle, also describing him as a pedophile.