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Published: Friday, 3/16/2012

Ottawa Hills shooting case goes before appeals court

Thomas White, left, was found guilty in the shooting and paralyzing of Michael McCloskey during a traffic stop in May, 2009. Thomas White, left, was found guilty in the shooting and paralyzing of Michael McCloskey during a traffic stop in May, 2009.
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Nearly two years after an Ottawa Hills police officer was convicted of felonious assault for shooting and paralyzing a motorcyclist during a traffic stop, lawyers once again argued issues of the case -- this time before the Ohio 6th District Court of Appeals.

The arguments were made Thursday before an audience at the University of Toledo College of Law. Judges Peter Handwork, Arlene Singer, and Stephen Yarbrough heard 30 minutes of argument before taking the case under advisement.

During her argument, attorney Deborah Rump said Thomas White was acting under a good-faith mistake when he fired a shot at Michael McCloskey and so, as a police officer, should be immune from criminal prosecution. She said precedent cases show the standard in reviewing an officer's actions is "what would a reasonable officer do with the same set of facts."

Assistant Lucas County Prosecutor Evy Jarrett countered that the appellate court need only look at a dashboard camera recording of the incident from White's patrol vehicle to see what the jury used to decide White's guilt.

White, 29, of Toledo was found guilty in Lucas County Common Pleas Court on May 14, 2010, of felonious assault with a gun specification for the May, 2009, shooting of Mr. McCloskey. After a week-long trial, the jury deliberated for about six hours before reaching a verdict.

The following month, White was sentenced to seven years in prison for the assault conviction plus three years for the gun specification. He remains free on bond pending appeal.

Michael McCloskey Jr. Michael McCloskey Jr.

Mr. McCloskey was paralyzed from the waist down as a result of the shooting. A civil lawsuit is pending in U.S. District Court in Toledo.

In the appeal filed March 30, 2011, White's attorney argued several errors, including a contention that the jury "lost its way" and that the trial court erred in several rulings.

Also listed as an error was the contention that it was "unconstitutional to convict White for a firearms specification given he was required to carry [a] firearm in the [course] of his employment."

When addressing the argument of the unconstitutionality of the gun specification, Ms. Jarrett noted that state law is not ambiguous and that a gun specification is to be attached when a firearm is used in the commission of a felony. She added that if lawmakers wanted to exempt police officers, it would be appropriately done with a legislated change in the law.

Ms. Jarrett further stated the argument about the constitutionality of the gun specification was not addressed by White's attorney during his trial.

Ms. Rump argued when questioned about the facts of the case that the trial court erred in allowing Mr. McCloskey and fellow motorcyclist Aaron Snyder to explain to the jury what was happening as the patrol car followed them. Instead, she said it was the former officer's perception that should have been considered.

She also argued that the lower court should have allowed the jury to consider the misdemeanor charge of negligent assault because White "was not acting knowingly, he was acting mistakenly."

Ms. Jarrett informed the judges that White was permitted when testifying to go step-by-step through the video to explain what he perceived as threats and dangers.

"All this information was thoroughly invoked at trial," she said.

About 80 people attended the argument, including students, lawyers, and community members. The case was one of three heard by the appellate court during the session.

The panel will release written decisions once deciding each case.

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.

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