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Judicial CP - February 2005
The Plain Dealer, Cleveland, Ohio, 1 February 2005
Former chief says no one protested paddling
By James Ewinger
Warren -- A former senior police official took the witness stand in his own defense Monday, sticking by his claim that no one ever complained about his practice of paddling boys and young men who broke minor laws.
James Martin, 52, spent the entire day on the witness stand in Trumbull County Common Pleas Court, where he is on trial on dozens of charges -- most of them misdemeanors and all of them related to his program for first-time offenders.
He has never denied using a long wooden paddle and testified that he began the program in Howland Township in the early 1970s. He was forced to shut that down when Howland got a new police chief in 1993. Martin was a captain there.
But he started the program in neighboring Fowler Township when he became the part-time police chief there in 1997. He retained the jobs in both townships until he retired last year.
During Assistant Prosecutor David Toepfer's aggressive cross-examination Monday afternoon, Martin admitted that he never told Fowler Township trustees he was paddling the boys.
Common Pleas Judge Andrew Logan has allowed lawyers for both sides a great deal of latitude in their style of questioning.
Defense attorney Dominic Vitantonio presented a large part of his theory of the case as he cross-examined more than 30 prosecution witnesses last week, telling them - and the nearby jury - that Martin acted to reform the boys and young men and videotaped some of the paddlings to document the absence of abuse and that all participants agreed to it instead of receiving jail time, criminal records or fines.
The foundation for Toepfer's questioning Monday was that American government uses a system of checks and balances to prevent abuses of power.
Toepfer argued, indirectly, that there were no limits on Martin's program because none of his supervisors had the full picture of his activities, because no judge or juvenile-justice official endorsed the paddling and because his standards for the use of physical punishment seemed to be inconsistent at best.
Martin testified that when Steve Lamantia became Howland police chief in 1993, he shut down Martin's original diversion program because the department was too small for a specialized juvenile officer and because the chief considered the program antiquated. But Martin produced a letter in which Lamantia also called the program effective.
Toepfer produced another letter Monday, this one from the Trumbull County Children's Services Board, recommending that the Howland program eliminate the paddling altogether.
Martin testified that the CSB letter was prompted by a single abuse complaint that he said was found to be unsubstantiated.
Martin also said people have focused on the paddling but ignored other facets of the program, including his insistence on good grades, obedience at home and no tobacco, drug or alcohol use.
Final argument is expected this afternoon, and the jury is likely to begin deliberating tomorrow.
Copyright 2005 cleveland.com. All Rights Reserved.
The Vindicator, Youngstown, Ohio, 1 February 2005
Ex-chief defends program
Having the teens decide their consequences gave them a 'good vibe,' Martin said
WARREN — James Martin said he was given little guidance as Fowler Township's police chief, other than being told by trustees they didn't want a lot of people being arrested or charged.
"It wasn't their thing," Martin testified Monday in his defense for his Trumbull County Common Pleas Court jury trial.
Hired in Fowler in 1997, Martin said he realized that juveniles who had made "bad choices" needed an "in-between step of diversion" rather than juvenile court.
So, he began a diversion program in Fowler similar to one he was told to stop in Howland in 1993 by then-Chief Steve Lamantia.
Howland trustees, Martin recalled, had complained about a Trumbull County Children Services report that alleged excessive force. "I was cleared of any wrongdoing in that," he noted.
Children services, however, had recommended changes if the program continued. With Fowler's program, Martin said he drew up new parental consent forms and other documents.
Not much feedback came from Fowler trustees to their new chief when he'd ask about various things, Martin recalled. "The comment I got most often was, 'We hired you to be the chief — that's your job.'"
He started the Fowler diversion program for juveniles in 2000-01. "There was a need for it. It worked. It was a good program," he said.
Paddling the young male offenders, or giving them "swats," was one facet of a multidisciplinary approach, Martin testified. Also involved was grounding, early curfews, restricted vehicle use, community service details, and being respectful to parents.
Rules were to be memorized, including No. 15 — being told only once to complete chores. "Parents liked that," Martin said.
Martin and defense attorney Dominic Vitantonio spent all day Monday methodically reviewing his documentation for nearly a dozen of the juveniles that had been in the Fowler diversion program.
All program facets were explained to parents over a one-hour meeting and none of them complained at first about the swats, Martin recalled.
The juveniles had gotten in trouble for speeding, theft by deception, drug abuse, domestic violence, fleeing and eluding, aggravated menacing, and shooting at passing cars with a BB gun. They were seen as good enough kids for the diversion program, having no previous serious juvenile records.
Martin kept track of their progress, and number of swats received, in their files. He said he'd have the youths prioritize appropriate consequences — including swats — for their actions in order of severity.
"You ask the kids to say, 'What do you think you deserve for your consequences? What do you think is reasonable," he said. "It all gave the kids a good vibe and a good attitude to the program."
Swats could be suspended on condition of good behavior, Martin testified. Some parents eventually did complain, and he said other consequences were arranged for correcting behaviors.
Martin retired last year.
If convicted he could face two years in prison. His indictment has now been amended from 52 to 36 counts.
Prosecutors dismissed eight of 20 counts of dereliction of duty, seven counts of unauthorized photography, and one of two counts of felony theft in office. There are 11 counts of assault and 12 counts of using a sham legal process.
The swats were videotaped without knowledge of the juvenile offender or parents, testimony has shown.
In Howland, where Martin was a full-time police captain until retiring last year, young men were being referred to his Fowler program. This was based upon his review of their cases or referral from others.
One of the Howland participants was Christian Mikusevich of Stillwagon Road, who on Jan. 7 filed a civil lawsuit against both townships, their officials and Martin seeking more than $200,000. A process server gave Martin a copy of this lawsuit during a break in the trial Monday. Mikusevich claims pain, suffering, embarrassment and other injuries.
Mikusevich in fall 2003 had a lawyer call Martin seeking options other than swats, such as community service. But Mikusevich, who had failed to memorize some of the program's 17 rules, wanted the work details changed back to swats, Martin recalled.
© 2005 Vindy.com. A service of The Vindicator.
The Vindicator, Youngstown, Ohio, 2 February 2005
Jury starts deliberating in James Martin trial
Consider the bias of some of the witnesses, the defense lawyer urged
WARREN — A jury began deciding if James Martin, former Fowler Township police chief and ex-Howland police captain, took official records and ran a sham legal process for paddling young men.
"There's a lot of stuff here that appears to be suggestive, but it's all smoke and mirrors and other irrelevant stuff," defense lawyer Dominic Vitantonio told jurors during his closing argument Tuesday.
To illustrate his point, he produced Martin's paddle and swatted himself loudly on the upper leg four times. "Look at this thing. It's so flimsy," he said. "It makes some noise. But so what?"
If it stung kids participating in Martin's juvenile diversion program a little bit, "That's what they were there for," he said.
A jury in Trumbull County Common Pleas Court began deliberating at 3:25 p.m. Tuesday after receiving instructions from Judge Andrew Logan. The jurors went home overnight and were to resume work this morning.
Argued for defendant
Vitantonio has argued that the evidence shows Martin ran an effective juvenile diversion program that kept wayward teens out of court, and taught them the value of work and good behavior.
David Toepfer, an assistant Trumbull County prosecutor, argued Martin had no authority to run his program outside of court supervision, to paddle and videotape young men as part of the program, or to keep case files at home.
Martin's amended 36-count indictment is for 12 counts of dereliction of duty, one count of felony theft in office, 11 counts of assault and 12 counts of using a sham legal process.
Even if jurors believe Martin made a "bad choice," they should see by applying the evidence that he's innocent and being made a scapegoat, the defense lawyer said.
Six juveniles have civil actions pending against Martin seeking monetary damages. "You are supposed to consider the bias or interest of the witnesses," he told the jurors.
Vitantonio methodically reviewed each count in Martin's indictment with the jurors, noting that the evidence applies to each count separately and that their task is "going to be intellectually difficult."
What he faces
If convicted Martin could face two years in prison.
A lot of Vitantonio's argument centered on whether Martin was expressly granted or forbidden certain powers by law, regarding traffic cases, running a diversion program or maintaining records. Martin issued documents "in his capacity as the boss of the police department," his lawyer said.
State and federal officials began investigating Martin's juvenile diversion program in March 2004. The program was being operated out of the Fowler Township Police Department, but until 1993 ran out of Howland's department.
Martin retired from the part-time Fowler and full-time Howland jobs last year. His personal testimony centered on how the program had the young men learn to follow 17 rules and accept discipline, including making restitution to victims and corporal punishment.
The swats were videotaped without knowledge of the juvenile offender or parents, testimony has shown. During the course of his weeklong trial, teen boys testified that they and their parents consented to participating in Martin's program. None knew that they had been videotaped getting paddled.
Claimed liability reasoning
Martin said he made the videos for liability protection. The prosecution, though, noted they show no faces and are not clearly labeled with times, dates or names.
The jurors will review the videos. In these there is no evidence of physical harm, Vitantonio said. "A lot of these kids testified the swat was the easy way out, despite what it sounds like," he said.
Officials from both the Howland and Fowler departments testified about what they knew of Martin's program.
Howland Police Chief Paul Monroe testified that Martin's program in Fowler was "a sham" legal process, a serious error in judgment and a crime. He said it would be unlawful on grounds of dereliction of duty and assault.
Steve Lamantia, Monroe's predecessor, testified that law enforcement officers at any level have no right to paddle. Lamantia also said township officials' concern about juvenile paddlings prompted Martin's removal from that program in Howland in 1993.
State investigators described how documents and videotapes were removed from both the Fowler department and Martin's home based on search warrants. Among items retrieved was a computer disc called "swat training" that showed the youths being paddled at the side of a desk.
Both Monroe and Lamantia testified to how official records are to be kept only at the police station, unless they are being used, for example, at a trial. Copies could be made, but taking originals home was not allowed.
"The purpose of a diversion program is not to give anybody any kind of an official record," Vitantonio noted. "This is his property. They're his records, he's entitled to keep them, this is his program ... What are they saying? That he stole them from himself?"
© 2005 Vindy.com. A service of The Vindicator.
The Plain Dealer, Cleveland, Ohio, 4 February 2005
Ex-chief acquitted of assault charges
Paddling spawned Trumbull case
By James Ewinger
Warren - A former police chief said he was vindicated Thursday when a Trumbull County jury acquitted him of 10 assault charges for paddling boys and young men.
Jurors convicted James Martin on some related charges, but the assaults were the foundation of the state's case. They appear to have accepted prosecutors' contention that Martin exceeded his authority, because jurors convicted him on 14 counts of conducting a sham legal process and four counts of dereliction of duty.
Martin never denied performing the spankings and maintained they were part of his diversion program in Fowler Township. They were designed to penalize first offenders accused of minor crimes and traffic violations.
Prosecutors argued that he had no authority to run the program, deceived township trustees, and intimidated the boys and young men into participating instead of performing other punishments such as cleaning the police station toilets with a toothbrush.
Martin's attorney, Dominic Vitantonio, argued that there was no crime, that participation was voluntary and that Martin genuinely wanted to rehabilitate the offenders. Martin went so far as to take one to church, get another a job, and compel all to get good grades, obey their parents and avoid drugs, alcohol and cigarettes, Vitantonio said.
The jury deliberated for two full days, arriving at a decision late Thursday afternoon. They had indicated to Common Pleas Judge Andrew Logan that they were deadlocked on all the assault charges Thursday morning. A day before, they had asked Logan for the legal definition of injury, which is an element of assault.
Vitantonio has asked Logan to throw out the sham-process convictions because the law says the sham must be conducted in support of another offense, and Martin was cleared of the assaults.
He was acquitted of theft in office. He had been accused of illegally taking police records to his home. Vitantonio said he often ran the Fowler department out of a makeshift office there.
Martin had been Fowler's part-time police chief since 1997 and continued to serve as a captain in neighboring Howland Township. He retired from both posts last year when he was indicted.
Outside the courthouse, which dominates downtown Warren, Martin said he will resume what's left of his life.
"I have family. I have children and grandchildren. I am retired, and I have my church," he said. "I still want to help kids."
Martin, who belongs to North-Mar Church in Warren, said he will resume his participation in the youth program there. He withdrew from that when the criminal charges were brought, he said, because he didn't want people questioning the church program.
"I don't care if you tell me I'm wrong, but don't attack my morals and my integrity," he said.
Martin spent 30 years in law enforcement, and this was the first time that he was on the other side of a criminal trial.
Much was made of video images of the spankings found in his bedroom. Logan threw out more than a dozen counts of unauthorized photography. Martin said he shot the video for liability purposes, to document that no one was abused during the paddlings. He said he stored a lot of records in the bedroom and had no machinery for watching videos there.
He said that for months local news media trumpeted the allegation that he had done bare-bottom spankings even though there was never any suggestion of that, no evidence and therefore no testimony at trial.
"But prosecutors did nothing to stop that," he said, complaining that it was designed to bias prospective jurors. "I can see how that can ruin peoples' lives," he said. "I've been battling this for 10 months."
In all, the jury considered 36 charges and convicted on 18, acquitted on 17 and deadlocked on one. He was convicted of all 14 sham charges and four dereliction counts. He was acquitted of all 10 assaults, six derelictions and the lone felony, theft in office. The panel deadlocked on a single assault charge. Sentencing is March 1, and Martin is unlikely to get any jail time.
Copyright 2005 cleveland.com. All Rights Reserved.
Tribune Chronicle, Warren, Ohio, 4 February 2005
Jury splits verdicts
By Christopher Bobby
WARREN - James Martin expressed relief and mixed emotions Thursday after a jury spent about 17 hours over three days before delivering a split verdict that cleared him on the most serious of 36 charges linked to his paddling teen offenders in a self-imposed diversion program.
Martin, a veteran lawman who was described by a character witness as a church-goer, praised his attorney and hugged his family members, some of whom smiled and others who wore puzzled looks.
The panel of six men and six women found the former Fowler police Chief and former Howland captain innocent on the only felony charge of theft in office that accused him of stealing Howland Township property in the form of outdated diversion program files from the 1970s and 1980s.
The files that outlined punishment for teenage boys, including deliberate swats with a wooden paddle, were found in the basement of Martin's home.
Earlier Thursday, the jury had told Judge Andrew Logan they were unable to reach decisions on 11 assault charges. Eventually, they found Martin, 52, innocent on all but one of the counts that were based on the paddlings. The remaining assault charge - on Ritchie Wolfe, who testified about running from the police station in tears after his first swats - was undecided.
On 12 counts of dereliction of duty, the jury was split with six counts guilty and six counts innocent.
Jurors found Martin innocent of those traffic tickets or violations he didn't issue personally, relying instead on referrals from other officers. He was found guilty of the one time he did issue the ticket himself or counts directly tied to the unsanctioned diversion program.
Martin was found guilty of all 12 counts of using a sham legal process. Martin's attorney Dominic Vitantonio said he will file court papers with the judge by Feb. 17 asking that he throw out those convictions because, he said, the assaults, of which Martin was cleared, would have been needed to facilitate a sham legal process. He said he'll argue that innocent verdicts on the assaults should automatically mean innocent verdicts on the sham charges.
Prosecutors David Toepfer and Michael Burnett will respond to Vitantonio's arguments by Feb. 25. Toepfer said he will argue that the convictions should stand despite Martin being cleared of the assaults because he said only intent is needed to get a conviction on a sham legal process charge.
Even if Logan does not return a decision favorable to the defense, Vitantonio said he is confident he could win at the appellate level.
Logan set a sentencing date for March 1.
"There was a true sense of justice in this case. Assault was the main issue. These allegations should have been dealt with administratively rather than in a criminal court," Vitantonio said.
Toepfer praised jurors for sorting through the allegations.
"Anytime you deal with corporal punishment it's difficult. I'm not surprised they didn't find the paddlings criminal. A lot of people still believe in corporal punishment," Toepfer said. "But the jury did find a clear case of abuse of power here."
The Wolfe boy, accompanied by his mother, told reporters that he expected more guilty verdicts against Martin. His family and at least four others have filed civil lawsuits in federal court against Martin and the two townships he worked for, seeking monetary damages for civil rights violations.
Prosecutors last week dropped all charges pertaining to Martin's video-taping of the paddlings, which Martin said were only to assure that no abuse was taking place during the punishment. The defendant also said the swats were only one form of punishment along with obeying home and school rules, curfews, drivers license suspensions and community service.
The jury asked only one question Wednesday when they wanted a dictionary, seeking an accurate definition of "injury."
But the jury on Wednesday also asked to view the computer-generated videos showing the swats. Logan's bailiff was instructed to use a laptop computer with a disc to display that piece of evidence.
The Plain Dealer, Cleveland, Ohio, 5 February 2005
Civil suit dismissed against former chief cleared in paddlings
By Donna Iacoboni
Warren - Retired Fowler Township Police Chief James Martin, cleared in a jury trial of assault charges for paddling young men, got more good news Friday.
A federal magistrate threw out a civil suit that accused Martin of violating four boys' constitutional rights - those that forbid cruel and unusual punishment and require equal legal protection.
Martin was happy with the news, said Doug Suter, his lawyer. "But there is one more case in federal court that we will be seeking to have dismissed," said Suter.
It was filed by a fifth boy who objected to being paddled, after having agreed to it to avoid criminal punishments and a police record, co-counsel Michael Passela said.
Martin plans to appeal the Trumbull County jury ruling Thursday that found him guilty of dereliction of duty and conducting sham legal processes, said Dominic Vitantonio, his defense attorney. Those misdemeanors stem from Martin's failure to inform township trustees of the details of his self-made juvenile diversion program, and the fact that state law gives the authority to create diversion programs to prosecutors only.
Vitantonio predicts that when the appeals are over, Martin, 52, will be left with convictions on four counts of dereliction of duty, nowhere near the 52-count indictment he originally faced in May.
Martin, a police officer for 30 years, had been paddling and counseling troubled boys since the 1970s, when he worked in Howland Township. He also required them to sign contracts agreeing to obey their parents, not smoke or drink and get good grades. He began videotaping the paddlings after one parent accused him of child abuse a decade ago.
The Ohio Police Benevolent Association is paying Martin's legal expenses.
Plain Dealer reporter James Ewinger contributed to this story.
Copyright 2005 cleveland.com. All Rights Reserved.
The Vindicator, Youngstown, Ohio, 14 February 2005
3 more young men file suits against ex-Fowler police chief
Another Trumbull County Common Pleas Court case is now in federal court
YOUNGSTOWN — Civil rights lawsuits keep rolling in for the retired Fowler Township police chief who paddled boys in a youth diversion program.
On Feb. 4, U.S. Magistrate Judge George J. Limbert dismissed four civil rights lawsuits boys' parents filed against James E. Martin in federal court, concluding that Martin had qualified immunity, which protects government officials from civil damages unless they clearly violated laws or constitutional rights.
Martin once served as a part-time police chief for Fowler Township and as police captain for Howland Township. In Howland, he operated a youthful offenders' diversion program that included corporal punishment.
Judge Limbert said that to establish a violation of rights, the plaintiffs needed to show that the force applied caused severe injury, was disproportionate to the need presented, and was inspired by malice or sadism rather than a merely careless or unwise excess of zeal. The force would have to amount to brutal or inhumane abuse of official power literally shocking to the conscience, he said.
Judge Limbert scheduled a status conference in the combined cases for Feb. 28 for the remaining defendants — Howland and Fowler townships.
Now, three more young men have filed similar lawsuits in federal court. They are Amir Shehabi of Niles-Cortland Road, Howland; Hubert Flowers of Venice Drive, Howland; and John L. Romine of Youngstown-Kingsville-Road, Fowler. Their ages were not shown in the lawsuit.
The new case is assigned to Judge Limbert.
Shehabi, while a Howland High School student in 2003, was suspended when a liquor bottle and beer bottle were found in his car, court papers show. Flowers was stopped for speeding in spring or summer 2003. Romine was accused by Martin of shooting BBs at cars in Fowler Township in summer 2002.
Shehabi, Flowers and Romine participated in Martin's diversion program in lieu of prosecution and were paddled.
The lawsuit names as defendants Martin, Fowler and its trustees, Howland and its trustees, and Howland Police Chief Paul Monroe.
The plaintiffs say Martin fraudulently had them enter into false and judicially unauthorized probation agreements, which violated their civil rights. He also videotaped the paddlings without their permission, the lawsuit states.
The young men sustained physical injuries, emotional pain and embarrassment, the lawsuit states. It was filed by Boardman attorney Alan J. Matavich and Warren attorney Sarah T. Kovoor.
The plaintiffs' attorneys ask for compensatory damages in excess of $100,000 and punitive damages in excess of $100,000.
Transferred to federal court
Last week, a case filed in January in Trumbull County Common Pleas Court on behalf of Christian Mikusevich, now 19, of Stillwagon Road, Howland, was transferred to federal court. The defendants are Martin, Howland and Fowler townships, their trustees, and Howland Township Police Department.
Mikusevich, who received a traffic citation in September 2003, participated in Martin's diversion program. The program included paddling as an alternative form of sentencing.
The Mikusevich case is expected to be combined with the lawsuit filed by Shehabi, Flowers and Romine.
On Feb. 3, in a related state case, a Trumbull County jury found Martin guilty of 12 counts of using a sham legal process and six dereliction of duty counts. The sham legal process involved Martin's providing youthful offenders with a document that appeared official but was not.
His lawyer plans to appeal. Sentencing is set for March 1 on the misdemeanor convictions.
The jury acquitted Martin of felony theft, 11 counts of assault and six counts of dereliction of duty.
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