COLUMBUS – On Monday, a Shelby County prosecutor filed a memorandum with the Ohio Supreme Court with his opinion on why the judicial panel should deny considering a 2012 civil rights case filed by former Shelby County Sheriff Dean Kimpel.
Kimpel has twice been denied requests to change his guilty plea in the case through previous decisions reached in Shelby County Common Pleas Court and Third District Court of Appeals in Lima.
He is seeking the right to withdraw his plea claiming vital evidence was not disclosed by prosecutors at the time. The original case, now in dispute, eventually led to Kimpel being ousted as sheriff.
The case is currently under review to determine if it is accepted to eventually go before the high court panel of judges.
In Monday’s filing, Assistant Shelby County Prosecutor Aaron Lowe, in the memorandum, claimed no court errors were committed and all proper steps were taken by investigators. He stated that two previous courts had “correctly decided these well-settled issues”.
On July 27, attorney Jeremy Tomb, of Troy, representing Kimpel, filed a 36-page memorandum claiming reasons his client had been denied proper justice. Tomb’s focus was on the Garrity Rights law that protects public officials from incriminating themselves; and the Brady ruling that deals with the prosecution withholding information from the defendant.
All filings in the case can be found online at the Ohio Supreme Court website at www.sconet.state.oh.us.
In July’s filing, Tomb wrote, “Statements given pursuant to Garrity warnings and deemed inadmissible by a trial court cannot form the basis for a criminal indictment or be used in a subsequent prosecution”. Secondly, Tomb noted, “The prosecution’s failure to provide material evidence to the defendant violated defendant’s due process rights.”
In his explanation to judges, Tomb stated if the previous two court decisions are not overturned it will have a “chilling effect” on the willingness of law enforcement and other public employees to cooperate with internal investigations for fear of subsequent prosecution.
Kimpel claims evidence withheld
The actions have stemmed from Kimpel attempting to prove the state withheld vital evidence that would have prevented his decision to plead guilty. In that case, he was accused of using the Ohio Law Enforcement Gateway computer to illegally look up individuals for personal purposes.
On April 13, 2012, Kimpel pleaded guilty to one count of unauthorized use of a computer through his then-attorney Michael Rumer of Lima. The charge of unauthorized use of computer, cable, or telecommunications property, a felony of the fifth-degree.
Later that year he resigned as sheriff and was fined and sentenced to two years of community control for the offense. A charge of sexual battery filed against him in Auglaize County was dismissed, as part of a plea agreement.
On May 12, 2017, in Kimpel’s civil rights case, a daylong hearing focused on a vital piece of evidence used in a sexual battery investigation against him during the same time as the computer offense. Kimpel claimed the evidence was misused to coerce a guilty plea from him for the computer use offense.
That day, Kimpel claimed he was denied due process when the evidence was withheld from him. He contended his sixth amendment rights were violated when investigators and prosecutors misconduct prevented him from bringing a civil lawsuit sooner.
On July 27, 2017, retired visiting Judge James Brogan of Greene County ruled the state did not withhold vital information that Kimpel claimed would have prevented his plea and case outcome.
This past June 12, the decision rendered by a three-judge panel with the Third District Court of Appeals upheld the local court’s decision. The Lima appeals court records refer to the action of Kimpel originally accepting a plea agreement to lessen the charges he was facing at the time.
Lowe files 19-page state rebuttal
On Monday, regarding the Garrity Law, Lowe claimed Kimpel failed to show where inadmissible statements were used against him in court proceedings. He stated, “the outcome would have been exactly the same”.
In denying the claim evidence was withheld, Lowe said Kimpel has failed to prove any exculpatory evidence was not presented to the defense counsel. He further claims the same information Kimpel cites was available “through multiple sources”.
Lowe also wrote the Supreme Court officials, in part, “The State’s failure to turn over the Auglaize County Report did not violate the mandates of Brady (Law) because the contents were not material exculpatory evidence. As such, there is no substantial constitutional question pending before this Court.”
The writer is a regular contributor to the Sidney Daily News.