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Published: Tuesday, 3/23/2010

Attorneys challenge statements in Telb case

BLADE STAFF
Telb Telb
JETTA FRASER Enlarge

Just weeks away from the criminal trial of Lucas County Sheriff James Telb and three others federally charged with crimes associated with the 2004 death of a county jail inmate, attorneys for the accused men continue to argue against the government's use of statements made during the investigation.

Sheriff Telb, Capt. Robert McBroom, and former employees Jay Schmeltz and John Gray are charged with actions surrounding the death of Carlton Benton. Mr. Gray is charged with applying a chokehold leading to the inmate's death June 1, 2004.

In U.S. District Court in Toledo Monday, attorneys for the four men argued several pretrial issues, including the validity of waiver forms signed by Mr. Schmeltz and Mr. Gray allowing federal agents to review statements made during an earlier 2004 internal investigation. Also argued was whether Sheriff Telb should have been advised of his constitutional rights prior to being interviewed by FBI agents.

The hearing before Judge David Katz lasted about three hours, but no rulings were made. The judge allowed the attorneys additional written arguments before deciding any motions.

After the hearing, attorney Rick Kerger, who represents Sheriff Telb, said more information will be argued through briefs and memorandums filed with the court. Then, the men will face a jury when the trial begins May 10.

Sheriff Telb, who has been in office 25 years, was charged with one count of making false statements and misprision of a felony, or the cover-up of a crime. Similarly charged was Captain McBroom, an internal affairs investigator.

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.

Among the issues discussed yesterday, Sheriff Telb's attorneys argued that he was not properly advised of his rights prior to an 2008 interview with FBI agents. Although the government said he was not in custody at the time, the defense claimed that agents had "some suspicion" prior to the interview that made the sheriff a suspect at the time.

Among the allegations against the sheriff is that he made false statements to agents during the interview. During the questioning of FBI Special Agent Brian Russ yesterday, Mr. Kerger noted that agents had interviewed 11 witnesses prior to the sheriff.

"When you met with him, you were suspicious that there may have been some obstruction of justice by Sheriff Telb?" Mr. Kerger asked as part of the only testimony taken during the hearing.

Agent Russ said he did not "know" but acknowledged he was suspicions.

It is those suspicions that made the sheriff a suspect and so required that he be read his rights, Mr. Kerger argued.

Also filed on behalf of Sheriff Telb was a motion to suppress his statements on the grounds that any evidence of false statements was destroyed because his words were not recorded by the FBI.

Judge David Katz said during the hearing that after review, he found "no federal court in the United States" that published an opinion requiring statements be recorded. He has not yet ruled on the motion.

Judge Katz detailed a time line on when additional arguments on the motions were to be submitted to the court. The attorneys also reviewed questionnaires that will be submitted to the jury pool, which is made up of potential jurors from throughout northwest Ohio.

Defense attorneys questioned federal prosecutors as to whether the Lucas County coroner's office would change the ruling on Mr. Benton's death, currently determined to be a result of natural causes.

Defense attorneys asked that a change in opinion - if any - be given soon so defense experts could be obtained.

Lucas County Coroner Dr. James Patrick and Dr. Cynthia Beisser, a deputy coroner, are both listed as the government's expert witnesses. Attorney Richard Walinski, who is co-counsel for Captain McBroom, said that the defense has not been given any information other than the office's initial 2004 ruling.

Judge Katz ordered the government to find out what "these two witnesses intend to testify to and provide that information in the form of a letter report to the defense counsel." The judge ordered the information be provided by April 6.

- Erica Blake



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