Toledo man to get new trial

Court: Jury that convicted him may not have been impartial

1/11/2014

BOWLING GREEN — A Toledo man was granted a new trial Friday after an appeals court found the jury that convicted him might not have been fair and impartial.

Herbie Betz, 43, was convicted in Wood County Common Pleas Court in 2012 of engaging in a pattern of corrupt activity, money laundering, two counts of illegal use of food stamps, and four counts of receiving stolen property for allegedly purchasing stolen food stamps, gift cards, and merchandise from patrons of his family’s Toledo bar, Lil Sheba’s. He has been serving an eight-year prison sentence.

Ohio’s 6th District Court of Appeals reversed his conviction after finding an improper “third-party communication” had occurred with one of the jurors, and the incident was not properly addressed by the court.

During Mr. Betz’s trial, the appeals court wrote, a juror told the court she and an alternate juror had lunch at a restaurant where two of the defendant’s family members were staring at them and the pair were later seen writing down their license plate numbers in the parking lot near the court. The juror, who later said she felt intimidated, did not report the incidents to the bailiff until after the jury began deliberating. She told her fellow jurors about it during deliberations.

Common Pleas Judge Robert Pollex cautioned the jury not to consider the incident in their deliberations, but he did not hold a hearing to determine what had occurred, how it impacted the juror, and whether it prevented Mr. Betz from having a fair and impartial jury decide his fate. And, after the guilty verdicts were returned, the judge denied a motion by the defense for a mistrial.

“We conclude the trial judge failed to fulfill his fundamental duty to ensure the trial was fair and impartial,” the appellate court wrote.

Mr. Betz, it said, “has a constitutional right to due process, including the right to a presumption of innocence and the right to a fair and impartial jury. Without knowledge that the jurors could remain fair and impartial, the court could not exercise its sound discretion in ruling on the motion for a new trial.”

Defense attorney Jeremy Levy was pleased with the court’s ruling.

“The court of appeals got it right,” he said. “The appeals court basically said there was an improper communication by a third-party person, and the court didn’t do a good job of protecting the defendant’s rights by inquiring more of the jurors to make sure they could be fair and impartial.”

Wood County Prosecutor Paul Dobson said his office would have to do more research before deciding whether to appeal the ruling to the Ohio Supreme Court. “Clearly we don’t want someone convicted because the jury was tainted,” he said. “We want them convicted because the evidence says so.”

Both Mr. Dobson and Mr. Levy said the juror who felt intimidated by the defendant’s family members should have reported the incident to the bailiff — and not shared it with fellow jurors — immediately after returning to court. The court could have excused her and replaced her with an alternate.

Mr. Betz’s wife, Michelle Betz, and his mother, Thelma Fowler, are serving prison sentences for their roles in the same enterprise for which Betz was charged.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-213-2134.