Wednesday, April 24, 2013


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:
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? 


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?

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