CONLEY IS BACK. FILES BRIEF WITH 5TH DISTRICT COURT OF APPEALS ON FORCHIONE MATTER. WILL PERSISTENCE MAKE HIS CLIENT & THE "RULE OF LAW" A WINNER?

Local attorney and civic activist Craig T. Conley may be Stark County's leading jurist in terms of his dogged, persistent pursuit of the rule of law.

Undoubtedly, his detractors would like to paint him as a lawyer who has gone amok in that he has so much ego that he cannot abide anyone getting the best of him.

Such might be the view of the anonymous person (presumably a peer lawyer of Conley's or, perhaps, a Stark County judge) who filed an ethics complaint against him on January 28, 2013 with Ohio's Disciplinary Counsel.  (LINK to prior SCPR blog).

Conley was exonerated of having committed any ethics violation on March 26, 2013. (LINK to prior SCPR blog on the topic)

To summarize the origin of things which resulted in the ethics complaint being filed:

Conley accused Stark County Court of Common Pleas judge Frank Forchione of grandstanding on part of his sentencing order of a Stark Countian who had pled guilty in his court in December, 2012 in multiple counts of Illegal Use of a Minor in a Nudity-Oriented Material or Performance (R.C. 21907.323(A)(1)](F2)).

Judge Forchione had, in the objectional part of his sentencing (to Conley) of one Scott Studer, ordered him to pay $5,000 for the benefit of the Sandy Hook Elementary School (Newtown, CT) shooting victims of December, 2012.

Conley of February 1, 2013 [LINK to prior SCPR blog) filed suit against Forchione (a Declaratory Judgment action on the interpretation of ORC 2949.11) demanding that "the rule of law" prevail and that Ohio's statutory scheme providing that criminal case fine money be paid to the county treasury in satisfaction of the aforesaid statute.

The reason that the SCPR cites to this particular link is because the referenced blog explores the question of whether or not Conley was motivated to take Forchione on in Studer because of a separate legal tussle between the two on the allegation by Conley that Fochione had demonstrated bias against him in a case in which he was a defendant (citation:  Estate of Cletus P. McCauley et al vs. Craig T. Conley, et al [Stark County, 2011 CV 02325] in 2011 in the Stark County Court of Common Pleas).

Needless to say, Conley denies that such was the case, but the SCPR thinks it is a fair question to ask and consider as one seeks to determine why Conley carries on (with a different client) and a new issue even after Forchione retrieved the $5,000 from Sandy Hook and had Stark County Clerk of Court Nancy Reinbold deposit the money into the Stark County general fund maintained by Stark County Treasurer Alex Zumbar as demanded by Conley.

The ink on the clerk of courts stamp on the voluntary dismissal (February 15, 2013) of the declaratory judgment action (filed on behalf of Thomas Marcelli) had not yet dried  yet when on February 28, 2013, a new legal proceeding was initiated against Judge Forchione.

Initially, Conley was not involved.

But by April 15th, Conley picked up on the new matter (pro bono - for the public good - as in Marcelli v. Forchione) in which Columbus resident Louis Demis (a former Stark Countian with ties to the Navarre area) alleged in an affidavit that Judge Forchione had, in ordering (and in following through in seeing that the order was effectuated [re:  Letter of Transmittal, January 3, 2013]) the $5,000 be paid to the Sandy Hook victims relief fund rather than to the Stark County treasury, committed the criminal offense of "theft in office."

Hearing was held on the affidavit in the Canton Municipal Court on April 23, 2013 before former Barberton Municipal Court judge Michael McNulty with Akron Law Department attorney Craig Morgan (an Akron chief assistant criminal prosecutor) appearing (unsympathetically to the affiant in the opinion of the SCPR) and Conley also appearing but who was actually advocating for the Demis position.  (LINK to prior SCPR blog with video on the entire hearing)

Well, to took Judge McNulty about one hour after concluding the hearing (at about 9:35 a.m. [the state having begun at 9:00 a.m.]) to file his decision of "no probable cause."  (LINK to prior SCPR blog detailing the decision)

Not long after the decision, Conley announced that he would be prosecuting an appeal for Louis Demis.  (LINK to prior SCPR blog)

The SCPR has obtained a copy of Conley's brief (about 15 pages long) filed in the appellate case which he filed on Friday.

Here are the issues as Conley sees them:

If Conley's client is to prevail and Conley's devotion to the "rule of law" is to be realized, then it will be owing to his persistence and doggedness.

For the SCPR daresays that about the only person living in Stark County who believes that the 5th District Court of Appeals will reverse Judge McNulty is Craig T. Conley.

Agree with him or not, like him or not; you have to admire his determinedness, perseverance and persistence.

While the SCPR would be surprised to see Judge McNulty overturned, there were probably a lot of Stark Countians that never thought that the $5,000 Studer fine would make it into the general fund of the Stark County treasury after it had already been paid for the benefit of the the Sandy Hook victims.

But guess where it sits on July 22, 2013?

Judge Forchione is likely being counseled by many that he has absolutely nothing to worry about from the Demis initiative.

And that may prove to be the case.

Nonetheless, the SCPR is guessing that he is not underestimating Craig T. Conley.

For he knows from first hand experience that Conley is absolutely committed to the "rule of law."  And make no mistake about it, motivated or not by outside events, Conley does see the current case as an extension of that basic principle of law.

Finally, he does put his money (i.e. pro bono time) where his mouth is!"

Yes, Craig T. Conley is back.

Could it be that his persistence will produce results once again?

CONLEY (ON BEHALF OF CLIENT DEMIS) FILES APPEAL OF "NO PROBABLE CAUSE" ON JUDGE FRANK FORCHIONE; THEN HIGH-TAILS IT OUT OF THE COUNTRY. HMM?

On April 23rd, the SCPR wrote, in part:

The SCPR has learned that Judge Michael McNulty has found "no" probable cause that Judge Francis G. Forchone committed a "theft-in-office" in his handling of the $5,000 Sandy Hook School Support matter growing out of the Scott D. Studer case.  (LINK to prior SCPR blog for background).

A complaining affidavit was filed with the Canton Municipal Court on February 28, 2013 by one Louis W. Demis now of Columbus, Ohio but formerly of Navarre (Stark County) Ohio.

Local media failed to inform the Stark County public about the filing of the affidavit when it was filed even though there is indication that they had access to the filing early on. 

... 

The SCPR published a blog on the matter forthwith on first learning about the existence of the filed affidavit. 

... 

Demis' attorney, Craig T. Conley, told yours truly that depending on his analysis of the articulated basis of Judge McNulty's decision, he may look into whether or not there is an appeal to be made.

 LINK to the entire blog .

On the following day The Report in analyzing McNulty's decision, in part wrote:

It takes less than 10 minutes.  Morgan's [Akron Chief Assistant Prosecutor Craig Morgan] presentation sealed the deal.  There would be no finding of probable cause.

What judge in all of America would find probable cause in the face of a prosecutor saying "I can't prosecute" and intimating "I will not prosecute?"

 LINK to the entire blog.

Notwithstanding, Judge McNulty's "no probable cause" decision, local attorney and civic activist Craig T. Conley has agreed to carry on behalf of Columbus resident (however, a former Navarre resident) Louis Demis with the case.

On the 15th of this month (last Wednesday), immediately on flying out of the country on a planned vacation (the SCPR was only joking in terming it "high-tailing" in this blog's headliner) Conley caused a Notice of Appeal to be filed.

So far Judge Frank Forchione (Stark County Court of Common Pleas) has to be "'feelin' good" about his prospects in the ultimate outcome of this case.

While it is common for those who lose in a trial court (or, in this case, a municipal court deciding on probable cause) to march out to the court house steps and declare that there will be an appeal.

The reality of appealing is that relatively few cases are overturned on appeal.

And, one has to believe that Conley and his client are not likely to succeed on appeal.

However, Conley tells the SCPR he feels very strongly that Demis v. Forchione is the exception rather than the rule; hence, the appeal.

If yours truly understands Conley's analysis, it appears that in his view is that McNulty's language:

 "Further it is doubtful that the $5,000 in question was ever the property of Stark County."

provides an opportunity beyond the points of law already argued by him in the probable cause hearing itself.

Notwithstanding the well known reality among attorneys who appeal cases as a matter of course that chances on appeal are pretty slim, one has to be struck by the Demis/Conley persistence.

In, reportedly, former Hall of Fame New York Yankee catcher Yogi Berra lanquage:  "It ain't over til its over."

While Judge Forchione appears to be "sitting pretty" in terms of his legal position, one would think that there has to be some unease that the case is being carried on.

For we all are fully aware of another well known colloquialism:  "Its not over until the fat lady sings."

Only and only if the Ohio Fifth District Court of Appeals (sitting principally in Canton) confirms Judge McNulty, will Judge Frank Forchione finally have his rulings and actions in State of Ohio versus Studer fully behind him?

WHAT? A FINDING OF "PROBABLE CAUSE" ON JUDGE FRANK FORCHIONE? "NO WAY, JOSE!!!

Re:  the "no" probable cause (by Judge Michael McNulty) that Judge Francis G. Forchone committed a "theft-in-office" in his handing of the $5,000 Sandy Hook School Support matter growing out of the Scott D. Studer case.

Links to prior SCPR blog for background on this and the Studer case:

• April 22, 2013 blog, and
• April 15, 2013 blog

If there was any doubt whether or not Judge Michael McNulty was going to find "probable cause" that Stark County Court of Common Pleas judge Frank Forchione committed the offense of "theft-in-office" as alleged in the affidavit/complaint of one Louis W. Demis (filed February 28, 2013 in the Canton Municipal Court), it became clear that the answer would be "no" after Akron prosecutor Craig Morgan took his turn to address McNulty.

Watch the hearing (LINK).  It takes less than 10 minutes.  Morgan's presentation sealed the deal.  There would be no finding of probable cause.

What judge in all of America would find probable cause in the face of a prosecutor saying "I can't prosecute" and intimating "I will not prosecute?"

While McNulty said he would take the case under advisement and such usually means at least a day or two and in some cases weeks, even months with some judges;  it took him probably less than an hour. 

The hearing had to be over by 9:30 a.m. and the decision was filed with the Clerk of Courts' office at 10:35 a.m.  Obviously, it took some time for the judge to:

• form his thoughts,
• articulate them,
• dictate them,
• have them typed, and 
• sign them

So now we have a new definition - time wise - for "under advisement?"

So why didn't he just make his decision from the bench and end what suspense there may have been? 

Hmm?

One reader of the SCPR wrote to yours truly:

Did you hear the judge overruled Conley? 

From your video, the prosecutor acted more like a defense attorney.

It was surreal to watch and hear Craig T. Conley (a local civic activist and attorney) make a well researched and planned argument get blown out of the water by Morgan's decidedly pro-Forchione stance.

Although Conley had to be pi _ _ ed, he didn't say a word.

Yours truly half-expected Conley to turn to Morgan at any minute and say to him something like:  "what's this all about, pal?"

Conley thinks Morgan made "much ado about nothing" about Demis' failure to appear.  Everything about the underlying facts of the case, Conley says, were agreed to.  What was there for Demis to add?

To boot, from his responses to press questions post hearing (LINK), The Report  thinks that Morgan was more than a tad uncharitable to affiant Demis in saying:

• his affidavit "reeks of being in bad faith" inasmuch as he was not present at the hearing,
• A SCPR question.  How could he know at the time of the hearing that Demis didn't experience a problem that prevented him from being present?

So it only appears in Ohio that there is such a thing as a similitude of "citizens arrest" (i.e. the right to bring criminal charges) in Ohio.  In reality, whether or not there are going to be charges is up to a prosecutor.

In this Demis/Forchione matter, Akron's deputy chief assistant prosecutor made it plainer than a bright sunshiny day that there was "no way, Jose" that this prosecutor was going to prosecute Judge Frank Forchione EVEN IF McNulty found probable cause.

How so?

Prosecutorial discretion is the magic phrase!

In one instance (in a case cited by Conley to McNulty), appeal to the Ohio's 5th District Court of Appeals (which sits primarily in Canton) had to be taken on a case in which an affidavit was filed because the prosecutor refused to call for a probable cause hearing.

The appellate court required that a probable cause hearing be held.

A curious part of McNulty's decision was that part that reads:  "Further it is doubtful that the $5,000 in question was ever the property of Stark County."

Must be that Judge McNulty thinks that the check was made payable to  the Sandy Hook School Support Fund on a certified check bought by Scott D. Studer means that it never belonged to Stark County.  However, when Forchione revised his order, then it did belong to Stark County?  Hmm?

Guess where it sits today?

In the Stark County treasury.

So does Judge McNulty's point leave Stark County open to having Studer reclaim the money?  Hmm?

Conley tells the SCPR he is looking into whether or not case law will support an appeal.  If so, it is ultimately up to affiant Demis as to whether an appeal will be made.

To sum up Conley's take on the day's proceedings he gave the SCPR this quote: 

"Our justice system does not always do justice and this case [State of Ohio v. Forchione] is an example."

To the SCPR, the most disturbing part of this saga is that two prime Stark County media outlets (The Repository and WHBC) sat on this story for weeks without nary a word to their readership/listenership which happens to be a significant part of the Stark County public.

It is only when the SCPR got wind of the story and started writing blogs did they get flushed out.

One has to wonder what else they may be sitting on when the topic concerns a prominent Stark County citizen?

As this blog is being written, yours truly is working on a topic involving some of Stark's rich and powerful who appear to be undermining the Stark County public interest in seeking a change to law to protect their private interests at public expense.

Who thinks that the editorial board of The Repository would turn their reporter staff loose on this story?

In Stark County, it appears that going forward it will be up to the likes of Conley to ensure that the powerful are accountable to the rule of law.

While Prosecutor Morgan may think in his own mind he was acting as an "independent-esque third party" yesterday, the SCPR's take was that he had pre-determined that:

"No way, Jose" was this case going anywhere!

Perhaps, in the future, Canton's Law Director (Joe Martuccio) should be rethinking who he brings into Stark County to try his conflict-in-interest cases?

FULL VIDEO OF STATE OF OHIO V. FORCHIONE "PROBABLE CAUSE" HEARING

UPDATE:  (2:55 PM)

The SCPR has learned that Judge Michael McNulty has found "no" probable cause that Judge Francis G. Forchone committed a "theft-in-office" in his handing of the $5,000 Sandy Hook School Support matter growing out of the Scott D. Studer case.  (LINK to prior SCPR blog for background).

See the judge's order at the end of this update.

A complaining affidavit was filed with the Canton Municipal Court on February 28, 2013 by one Louis W. Demis now of Columbus, Ohio but formerly of Navarre (Stark County) Ohio.

Local media failed to inform the Stark County public about the filing of the affidavit when it was filed even though there is indication that they had access to the filing early on.

The SCPR published a blog on the matter forthwith on first learning about the existence of the filed affidavit.

Of course, both outlets (The Repository and WHBC) were all over the story once the probable cause hearing was announced.

Demis' attorney, Craig T. Conley, told yours truly that depending on his analysis of the articulated basis of Judge McNulty's decision, he may look into whether or not there is an appeal to be made.

The Report will have an analysis of the proceeding and the judge's decision in a blog planned for tomorrow.

ORIGINAL BLOG

 VIDEOS

Hearing:  State of Ohio v. Forchione

Press Conference

First Up:  Craig T. Conley

Followed By:  (same video)

Craig Morgan

The Stark County Political Report presents the entire video of the probable cause hearing of Stark County Common Pleas Judge Francis H. Forchione,

For background see the below lined blogs.

• April 22, 2013 blog, and
• April 15, 2013 blog

Press conference video:  Conley followed by Morgan.

A "PROBABLE CAUSE" HEARING (ON "ALLEGED" THEFT-IN-OFFICE) SCHEDULED FOR APRIL 23RD ON CONSEQUENCES OF STARK CO. COMMON PLEAS JUDGE FORCHIONE ORDER IN THE STUDER CASE. HMM?

UPDATE:  04:45 p.m.

The SCPR has learned that Judge Frank Forchione nemesis Craig T. Conley has been retained (on a pro bono basis) to provide legal advice and counsel to Louis W. Demis with regard to his affidavit (see full affidavit below) vis-a-vis Forchione and his allegation that Forchione's re-directing of fine money ($5,000) via his order in the Scott D. Studer case from the Stark County treasury general fund to the Sandy Hook Support Fund amounted to a theft-in-office by the case law of Ohio.

Conley says that Demis is committed to pursuing his allegation to a successful conclusion.

Conley tells the SCPR that he will be in contact with Akron prosecutor Craig Morgan soon in a coordinating sort of way in preparation for a "probable cause hearing" set for April 23, 2013 at 9:00 a.m. in the Canton Municipal Court with former Barberton judge Michael McNulty presiding.

SUBTOPIC

REPOSITORY SITS ON STORY

What is the expression about getting more than one bargained for?

Oh!  How about?  "Be careful what you wish for — you just might get more than you bargained for."

Well, as it turns out, "getting more than one bargained for" may be the ultimate consequence for Judge Francis (Frank) G. Forchione of the Stark County Court of Common Pleas in his sentencing of Scott D. Studer.

The, let's say, the "unorthodox" (to be euphemistic) original sentencing (December 19, 2012) was done in the full glare of media attention and Forchione - as a ramification of the sentencing hearing - garnered local, statewide, national, and, indeed, international attention.

Here is a SCPR LINK for those SCPR readers who are not familiar with the details of a matter in which Forchione ordered a convicted felon (Studer pled guilty to several felony counts) to pay a $5,000 fine NOT through the Common Pleas Court Clerk of Courts TO be forwarded on to the Stark County treasury and then deposited in the Stark County general fund as required by Ohio law, BUT TO the Sandy Hook School Support Fund in order to aid the families of the victims of the December 14, 2012 mass shooting/killing of 20 students and 6 teachers in Newtown, Connecticut.

Within days local attorney and civic activist Craig T. Conley accused Forchione of grandstanding (SCPR LINK).  Moreover, a Bethlehem Township resident stepped forward and asked Conley to file a lawsuit in order to get the money to where it belonged, he said: to the Stark County general fund.

Conley agreed to do so pro bono (for the public good).

For his civic-mindedness, Conley was rewarded by being named the subject of a ethics complaint filed by an anonymous (SCPR LINK) person on January 28, 2013.

Ultimately, Forchione found a way (SCPR LINK) to retrieve the $5,000 fine from Newtown and amended the original Studer case order and by the amendment had Clerk of Courts Nancy Reinbold forward the $5,000 onto Stark County Treasurer Alex Zumbar for deposit in the county general fund. 

The Marcelli complaint was voluntarily dismissed on February 15th.

Conley on March 26, 2013 was exonerated (SCPR LINK) by Ohio State Bar Association ethics counsel on the ethics complaint "as being unfounded."

End of matter?

Apparently not!

The SCPR learned on Friday (late in the day) that a Columbus resident (Louis W. Demis) has filed an affidavit with local authorities on February 28th alleging that Judge Forchione had in ordering (and in following through in seeing that the order was effectuated [re:  Letter of Transmittal, January 3, 2013]) that the $5,000 be paid to the Sandy Hook victims relief fund rather than to the Stark County treasury committed the criminal offense of "theft in office," to wit:

The SCPR has further learned that Stark County's only countywide newspaper has known of the affidavit being filed for some time and has decided (a least for the time being) not to inform Stark Countians of the pending action.

This is the same newspaper who saw fit to publish an article about Mayor Healy's wife and her being arrested on October 13, 2011 on a matter that had absolutely no relevance to the mayor's performance in office.

Pray tell?  How many standards are in effect at The Repository?

Of course, local authorities treated the affidavit as if it was the hottest potato to hit the Stark County in many a moon.  Forchione served as the top prosecutor in Canton during his 13 years in the Canton Law Department where he served his full legal career (other than also maintaining a private practice) until he was elected to the Stark County Court of Common Pleas bench in November, 2008.

Canton Law Director Martuccio tells the SCPR that immediately on receiving the affidavit, Canton Municipal Court Clerk of Courts Phil Giavasis telephoned him with the question:  "What am I to do with this affidavit?"

Answer:  Martuccio directed his Canton Law Department staff find non-Stark Countian criminal justice folks to take a look at questions compelled by the filing of the affidavit; namely:

• whether or not to prosecute (who turned out to be Assistant Akron Chief Assistant Criminal Prosecutor Craig Morgan) on the basis of the affidavit, and 
• whether or not a viable judiciable complaint (i.e. probable cause) has been made (who turned out to be the retired but formerly long time Barberton Municipal Court Judge Michael McNulty).

Martuccio agreed with The Report's assessment that the filing of the affidavit was consonant with Ohio statutory authority which seemingly is Ohio's version of "citizen arrest" legislation (Ohio Revised Code Sections 2835.09 and 2835.10) that is prevalent across America.

Moreover, he told The Report that over his years in the Canton Law Department only few of such affidavits have been filed.

This past Tuesday, April 9, 2013, Canton Municipal Court acting presiding and administrative judge Stephen Belden set a  "probable cause hearing" on the Demis affidavit for Tuesday, April 23, 2013 at 9:00 a.m. before Judge McNulty.

Martuccio said that it is not likely that Judge Forchione will be appearing at the hearing.  However, he added that if probable cause is found, then Judge Forchione will be processed through the criminal justice system the same way as any other citizen.

If this matter passes the "probable cause" hurdle, one has to wonder how Prosecutor John Ferrero (Stark County's prosecutor) handles the matter inasmuch as felonies get prosecuted at the county level and not the municipal court level.

As readers of the SCPR know, yours truly, like Sheriff Tim Swanson, does not have a lot of faith (LINK) in how Ferrero runs his office.

However, this one, if it gets that far, appears to be a "no brainer" that Ferrero's office would not be touching this one with the proverbial "ten foot pole."   The office provided legal advice to Judge Forchione during the Marcelli challenge of his sentencing of Studer.

Undoubtedly, the matter would not be presided over by a sitting nor former Stark County Common Pleas Court judge.

The SCPR has learned that a local (Canton-based) lawyer is looking at taking on the case (apparently in advisory role to Mr. Demis since only prosecutors try criminal cases in Ohio) on a pro bono basis.

There probably is no more apt way to describe what Judge Forchione has gotten himself into other than to use the "tar baby story" (not the SCPR's idea, rather an idea borrowed from another) from the collection of Uncle Remus stories many of us "older" folks were subjected to in elementary school decades and decades ago.

Nowadays it is not cool to use these stories because some think they are racist expressions.

The SCPR's use of the tar baby story is designed to vivify the sticky situation that Judge Forchione apparently has created for himself in grandstanding (Conley's accusation) in having Scott Studer pay his fine - not to the Stark County treasury as required by law - but rather to the Sand Hook Foundation.

From Wikipedia here is the essence of the story:

Br'er Rabbit ("Brother Rabbit") is the main character of the stories, a likable character, prone to tricks and trouble-making who is often opposed by Br'er Fox and Br'er Bear.

In one tale, Br'er Fox constructs a lump of tar and puts clothing on it. When Br'er Rabbit comes along he addresses the "tar baby" amiably, but receives no response. Br'er Rabbit becomes offended by what he perceives as Tar Baby's lack of manners, punches it, and becomes stuck.

So the question becomes with the filing of the Demis affidavit: Is Judge Forchione about to become stuck to a problem that he gave birth to beyond anything anyone dreamed of?

Will he be pondering the adage: 

"Be careful what you wish for (i.e. publicity? in making the order) — you just might get more than you bargained for."  Or will the affidavit prove to be "a tempest in a teapot?"

Only time will tell.

Stayed tuned to the SCPR where you can depend on hearing Stark County news and analysis when it breaks!