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).
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!
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