An attorney for former Toledo-area coin dealer Tom Noe filed an objection Wednesday to a federal magistrate judge’s recommendation that the court deny Noe’s request to vacate his conviction and order a new trial.
In a leng-thy report and recommendation filed June 19, Magistrate Judge Kathleen B. Burke found no basis for Noe’s claims that the trial court improperly allowed an expert witness for the state to testify while denying Noe’s experts the same opportunity. She also dismissed the claim that the trial court improperly denied his request for a change of venue because of pretrial publicity that tainted the jury pool.
In 2006, Noe was convicted in Lucas County Common Pleas Court of the theft of millions of dollars from rare-coin funds he managed for the Ohio Bureau of Workers’ Compensation. Now 58, he is serving an 18-year prison sentence.
Defense attorney Rick Kerger, who is representing Noe free of charge, said Wednesday that he was placed “almost in a Catch-22” by Judge Burke when she denied his request for a hearing in the case. While she concluded in her report that he failed “to demonstrate that the admission of that evidence was so prejudicial” that it deprived Noe of a fair trial, Mr. Kerger said that was an “impossible” task without the opportunity to present his arguments at a hearing.
The Toledo attorney said in a brief filed with the court that he intends to submit on Friday an affidavit from the jury foreman in Noe’s trial who will indicate “just how critical the expert testimony was in his opinion.”
Mr. Kerger also reiterated his claim that “the constant barrage of publicity leading up to the trial created an impression of [Noe] as a sleazy, dishonest, political hack” in the minds of prospective jurors.
“It is akin to Chinese water torture, the steady drop of unfavorable commentary on one individual for months, months, and months that creates that prejudice,” he wrote. “… The effort here is to demonize [Noe], and it is a task that has been well-accomplished.”
Kevin Pituch, an assistant Lucas County prosecutor who tried the case against Noe in 2006, said Mr. Kerger’s objections “have been dealt with first by the trial court and then by the Court of Appeals.”
Noe’s state conviction was upheld by the 6th District Court of Appeals in December, 2009, and in June, 2010, the Supreme Court of Ohio refused to grant a hearing on his appeal.
Mr. Pituch said then-Lucas County Common Pleas Judge Thomas Osowik went out of his way to ensure an impartial jury, dismissing any prospective juror who said he or she had formed an opinion about Noe rather than asking if they could set aside that opinion.
“... Most prospective jurors hadn’t formed an opinion as to whether Noe was guilty or not,” he said.
The Ohio Attorney General’s Office has two weeks to respond to Mr. Kerger’s objection. The matter then will be decided by U.S. District Court Judge John Adams in Akron, who could accept the recommendation, accept it but make modifications, send it back for a hearing, or reject the recommendation and reverse Noe’s conviction.
“He has a whole slate of possible outcomes,” Mr. Kerger said.
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