Noe's lawyers file for new trial

Tom Noe, center, is flanked by lawyers William Wilkinson, left, and John Mitchell at his sentencing on state charges on Nov. 20, 2006. Noe was sentenced to 18 years in prison.

Armed with a signed affidavit from the foreman of the Lucas County jury that convicted Tom Noe, lawyers for the onetime Republican insider are asking for a new trial, claiming juror misconduct.

In a motion Thursday for a new trial in Lucas County Common Pleas Court, his attorneys asked Judge Gene Zmuda to hold a hearing as to whether jurors' actions in the case constituted misconduct, saying that at least one juror said Noe was guilty of multiple charges "just to get the case finished."

Noe was convicted on several counts of theft and corruption stemming from charges he stole millions of dollars from a rare-coin fund he managed for the Ohio Bureau of Workers' Compensation.

"The jury did not deliberate and reach a verdict based upon the evidence presented at trial. I, and the rest of the jury, felt overwhelmed by the numerous exhibits that we were expected to go through," jury foreman James Petiniot said in an affidavit signed July 31 and filed with the motion for a new trial.

"By the end, a couple of the jurors felt they had an obligation to convict and just wanted to get it over with. In the end, a couple of jurors gave up and said they would just go along with what the others decided."

Mr. Petiniot, 70, a retired Toledo city housing inspector, could not be reached for comment yesterday.

The criminal case against Noe concluded in November, 2006, with a jury convicting him on 29 charges of corruption, theft, money laundering, and tampering with records. He was found not guilty on 11 other charges, and several others were dismissed or consolidated.

Former Common Pleas JudgeThomas Osowik sentenced him to 18 years in state prison and ordered him to pay millions of dollars in restitution.

In their appeal filed June 30 in the 6th District Court of Appeals, his attorneys asked that Noe be acquitted on all 29 charges.

Noe is serving a 27-month federal sentence in central Florida after pleading guilty to charges that he made $45,000 in illegal contributions to President Bush's re-election campaign.

Following his federal time, Noe will be brought back to Ohio to serve his state sentence.

In their June appeal, Noe's lawyers said that he didn't receive due justice on at least seven occasions during his 2006 trial. Prosecutors have until Sept. 30 to file a response.

Noe's lawyers wrote in the motion for a new trial that the verdict was not reached "based on evidence at trial" but instead because of the jurors' desire to end the trial.

Attorneys also added that some jurors admitted among themselves to having seen media coverage of the trial.

Defense attorney William Wilkinson did not return calls seeking comment yesterday afternoon.

Attorney John Mitchell said he could not comment on the case, including how the alleged misconduct came to light.

John Weglian, chief of the special units division of the Lucas County prosecutor's office, characterized the motions as being without merit and pointed to Rule 606-B of Ohio's Rules of Evidence as to why Mr. Petiniot's claim was not cause for a new trial.

The rule states that when inquiring about the validity of a verdict, "a juror may not testify as to any matter of statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith."

Only if there was improper outside influence or a bribe involved could a juror testify, according to the rule.

"His affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying will not be received for these purposes," the rule states.

Mr. Weglian noted that only one juror among the 12 has now expressed concerns about deliberations.

"That's why things relating to jury deliberations are not subject to inquiry," he said, adding that the court does not have the authority to question the verdict unless there is an external showing of wrongdoing, not just a juror complaining about something.

Mr. Weglian noted that the Ohio Supreme Court ruled on a similar issue in the case involving Matthew Reiner, a father who was convicted in 1996 of manslaughter in the death of his 2-month-old son.

The conviction was overturned, but not because of juror misconduct as the Court of Appeals had ruled.

Instead, the Supreme Court referred to what is known as the Aliunde Rule when it decided that the court cannot inquire into juror misconduct unless the allegation is of improper outside influence.

"The law is that absent external proof of some sort of wrongdoing, a juror cannot impeach the verdict of a jury," he said.

Prior to hearing evidence on possible juror misconduct, Judge Zmuda would have to decide whether to consider the motion at all.

Motions for new trials must be filed within 14 days of the trial's conclusion. But Noe was not able to adhere to the 14-day time limit because it was not until 2008 that attorneys said they were notified by Mr. Petiniot of what he considered juror misconduct, the motion said.

Visiting Judge Ronald Bowman said he was not aware of a similar motion being filed in Lucas County in his 21-year career on the bench. He noted that in Ohio, juries are instructed before deliberations that each juror must decide the case for himself or herself.

However, jury instructions do allow a juror to change his mind after listening to fellow jurors as long as a juror does not give up his opinion "concerning the weight of the evidence in order to be congenial or to reach a verdict solely because of the opinions of other jurors."

Judge Bowman noted that in this case, as in every other, jurors agreed on verdicts and signed verdict forms.

Toledo attorney Jerry Phillips said it's unusual for jurors to come forward after a verdict and allege misconduct, but not unprecedented.

And when such after-the-fact claims do emerge, it's typically days after a trial's end, not 21 months later.

All told, Mr. Phillips said, such juror claims rarely result in reversed verdicts. In this case, the juror's assertion that he and other jurors would have been influenced by subsequent news that the state profited on its coin investments is moot, as this investment information wasn't available at the time, and holds no bearing on whether a crime occurred.

Noe's lawyers said that in addition to juror misconduct, their client's rights were violated when he was ordered to pay restitution as part of his sentence prior to the liquidation of the coin funds.

Those funds, the brief said, since have earned money and that money should have been considered when ordering restitution.

Because Noe has no way to correct this error, he is entitled to postconviction relief and his conviction must be vacated, the motion said.

Again, Mr. Weglian was dismissive of the claim, saying that whether Noe is entitled to any profit from money earned on the investment would be a question for a civil court, specifically, whether Noe's theft offenses voided his contract.

The profits made, he added, do not have any bearing on the payment of restitution for the $13,747,000 Noe stole.

"He's not entitled to say, 'Look, I made money with the money I didn't steal; therefore the amount I owe should be reduced,'" Mr. Weglian said.

Staff Writer JC Reindl contributed to this report.

Contact Erica Blake at:eblake@theblade.com

or 419-213-2134.