Lawyers jockey in buildup to trial over inmate death

2/28/2010

Several times during John Gray's career as a sergeant with the Lucas County Sheriff's Office, he was accused of displaying dishonest and aggressive behavior when dealing with inmates at the jail - incidents that federal prosecutors recently said they intend to introduce as evidence in his pending criminal case.

Accused of applying a chokehold that led to the death of an inmate in 2004, Mr. Gray is one of four current and former employees - including Sheriff James Telb - charged in U.S. District Court in Toledo.

Sheriff Telb, Capt. Robert McBroom, and former employees Jay Schmeltz and Mr. Gray are each charged with actions surrounding the death of Carlton Benton, who died while in custody awaiting trial on two murder counts. The case is scheduled for trial May 10, with Judge David Katz presiding.

In a lengthy document responding to motions filed by the defense, government lawyers indicated five unrelated incidents in Mr. Gray's past and three during Mr. Schmeltz's career that "the government may introduce in its case-in-chief."

In the list were incidents - in 1988, 1994, and 1995 - in which Mr. Gray choked or placed a chokehold on three inmates as well as an incident in 1989 in which he punched an inmate in the face. In two cases, he was "counseled" for failing to file written reports of the incident.

Attorney Spiros Cocoves, who represents Mr. Gray, said he will respond to the government's notice in order to prohibit the incidents from being introduced at trial.

"We're going to respond in some fashion. The form [of the response] is still under evaluation," Mr. Cocoves said. He would not comment on what other issues may be raised prior to trial.

Sheriff Telb, a Democrat who has been sheriff for 25 years, was charged with one count of making false statements and misprision of a felony, or the cover-up of a crime. Charged with similar crimes was Captain McBroom, an investigator in the department's internal affairs unit.

Both Mr. Gray, a retired sergeant, and Mr. Schmeltz, a retired deputy, were charged with deprivation of rights under the color of law, two counts of falsification of a document, and one count of making false statements.

A second charge of deprivation of rights under the color of law - which is filed against members of law enforcement who allegedly violate a person's civil rights while acting in their official capacities - was filed against Mr. Gray, who is accused of choking Mr. Benton at the jail. The inmate died days later on June 1, 2004, at St. Vincent Mercy Medical Center.

The men pleaded not guilty to the charges on May 1.

Attorney Rick Kerger filed a motion Feb. 15 requesting that the court suppress Sheriff Telb's statements to FBI agents, claiming that any evidence of false statements was destroyed because his words were not recorded.

Federal prosecutors responded that there is no legal precedent that requires statements to be recorded. "While the defendants will certainly be free to cross-examine the FBI agents at trial concerning the trustworthiness of their accounts of the defendants' statements, there is simply no legal basis on which those statements should be suppressed," the response stated.

Mr. Kerger, who filed a reply Friday, said he stands by his argument. "We shouldn't have to [rely on the agent's recollection]," he said. "Coupled with the fact that he wasn't told this was an investigation and he was being asked about incidents that occurred four years earlier."

In his reply, he noted there are some differences between written notes made part of the investigation file and the agent's memory of what was said.

"The interests of justice would best be served by a determination that in the 21st century there is no legitimate reason for the Federal Bureau of Investigation to continue conducting interviews without recording them," the reply said.

Similar arguments were made by attorneys for Mr. Schmeltz and Mr. Gray. Attorneys for both also moved to exclude statements made during interviews with internal affairs investigators, saying that both men were "compelled as part and within the scope of his employment to attend and participate in the interview."

While agreeing that they couldn't use "statements made by a public employee who is required to waive his right against self-incrimination as part of administrative proceedings," the government responded that both signed waivers that allowed the government to make use of "statements that it otherwise [would] be prohibited from using."

"The defendants do not allege - nor could they - that they did not read this document prior to signing it or that they did not understand what they read," the response said.

Attorney Jon Richardson, who is representing Captain McBroom, said the suppression issue did not apply in his client's case. But he did address the government's opposition to his request for funds for investigative services, which he said would help in his preparation for the case.

"The government lists a lot of witnesses that they say saw things," he said. "It's always good to be able to talk to those witnesses ourselves."

Similar to the request of Mr. Gray, attorneys for Mr. Schmeltz requested to be informed of any prior acts that the government intended to introduce as evidence. Also similar to his co-defendant, Mr. Schmeltz will file a motion to keep that information out, attorney Jeff Helmick said.

The government listed three incidents involving aggressive behavior dating to 1986, including one in 2005 in which Mr. Schmeltz fired multiple shots from his firearm at a motorist's vehicle because the driver had parked illegally and struck him while backing out of her spot. "The Sheriff's Office Firearms Review Board found the shooting 'unjustified,' and ordered remedial training for Schmeltz on use of deadly force policies," the federal reply stated.

"Certainly we're going to consider filing a motion … to prohibit that type of evidence from being introduced," Mr. Helmick said.

Judge Katz set a March 22 hearing date where attorneys will be allowed to question witnesses and further argue the issues.

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.