Last edited: November 23, 2003

Judge Who Jailed Man for Nonexistent Crime Is Sued

Gay People’s Chronicle, November 21, 2003
P.O. Box 5426, Cleveland Ohio 44101
Fax 216-631-1052

By Eric Resnick

Youngstown—A judge that sent a gay man to jail for violating a nonexistent “importuning” law has been made a defendant in the man’s federal lawsuit against the city of Warren and the lawyers that represented him.

Keith E. Phillips, 21, of Youngstown served four months in jail after he pleaded no contest to a second charge under the nonexistent law in April.

The importuning law had made it a crime to ask someone of the same sex for sex if it might offend them. The Ohio Supreme Court found it unconstitutional in May 2002, partly because the same act is legal for someone of the opposite sex.

Phillips discovered this after his August release. He had been convicted of breaking an identical Warren city ordinance which was repealed on November 13, 2002, a month before he was first charged under it.

Last week Phillips filed a $10 million suit against the city of Warren, its municipal court, his former attorneys and two social workers who had prepared a pre-trial report on him. The suit charges false arrest, false imprisonment, legal malpractice and denial of several rights.

Warren Municipal Judge Thomas P. Gysegem and Assistant Prosecutor Traci Rose were both responsible for making sure Phillips was only charged or convicted under existing laws. However, judges and prosecutors have immunity in such cases and can’t be sued.

But Phillips added Gysegem to the suit on November 18, charging defamation by slander for a comment the judge made in a newspaper.

In a story about the initial suit, Gysegem was asked by the Warren Tribune Chronicle about Phillips being charged under a repealed law.

“It’s not my job to go out and find this stuff out,” Gysegem answered, adding that he believed Phillips was correctly charged.

According to Phillips’ attorney Randi Barnabee of Northfield Center, it is what he said next that got the judge added as a defendant.

“He has a habit of pulling down his pants around young boys, and as far as I’m concerned, that’s still illegal in the state of Ohio,” Gysegem told the paper.

“Gysegem knew or should have known [this] to be either false or without any evidentiary support and basis in fact,” wrote Barnabee in the amended complaint, which added another $1 million for Gysegem.

Prior to the first charge under the repealed law on December 16, 2002, Phillips had no prior arrest or criminal record.

Asked to comment on the judge’s remarks, attorney and state senator Marc E. Dann of Youngstown, whose firm represented Phillips in the second case said, “I have no idea what he was talking about. He must have known something we didn’t.”

Dann and his employee, attorney Benjamin Joltin, are defendants in the suit.

Warren Law Director Greg Hicks, who represents the city in the case, said, “Gysegem is going to have to speak for himself on this one.”

Gysegem did not respond to repeated phone calls or faxed questions.

Barnabee said Gysegem could be sued for the statement because the judge’s immunity only covers his official duties.

“Gysegem’s statement was not a judicial act,” said Barnabee.

Phillips’ troubles began when he was charged December 16, 2002 with importuning after a 17-year-old co-worker complained that banter between him and Phillips had become too crude.

Not knowing the measure no longer existed, Phillips, then 20, appeared before Gysegem without a lawyer and pleaded no contest to the charge.

Gysegem gave him a 180-day suspended sentence, a $600 fine, and five years probation including sex offender courses—paid for by Phillips—and monitoring of his computer.

A second importuning case in April was affected by this one, and Phillips had to serve four months in jail. He was released August 14.

In the second case, Phillips was arrested at work following a report that he had solicited a 14-year-old boy on April 11.

This time he was charged with felony importuning under a section of the Ohio law still in effect that deals with juveniles. He was represented by attorney Joltin.

Phillips produced his time card showing he was at work when the youth said the incident occurred and four co-workers to testify to the same. Phillips’ car does not match the one the youth described, nor does he match the teen’s description of the driver that asked him for oral sex.

According to the complaint, Joltin never presented this evidence to the court. Instead, he negotiated a plea bargain for Phillips to spend 120 days in jail in return for no probation violation from the first case.

Phillips said he took the deal under Joltin’s advice, saying Joltin told him, “There are some things not worth fighting for.”

Dann spoke to the Gay People’s Chronicle with Joltin in the background feeding him information.

“We did good work,” said Dann. “We did what he asked us to do,” adding that the decision to accept the plea bargain was Phillips’. “I’m sorry he feels otherwise.”

Dann said a motion to vacate the first conviction was never filed because no one asked him or Joltin to act on the first case.

Dann said he and Joltin consulted closely with Phillips’ grandmother Barbara Berndt, and his cousin, Columbus criminal defense attorney Jeffrey Berndt during the time they represented Phillips.

Jeffery Berndt disputes that claim. He said he was not close to Phillips’ case and was not sure what the actual charges were.

“Before I could do anything, my mother [Barbara Berndt] hired those guys [Dann and Joltin],” said Berndt.

“I had a little communication with Ben [Joltin],” said Berndt, “but it was nothing tactical.”

“The problem I have,” said Berndt, “is that [Phillips] ended up doing time when I was told he was going to a residential program.”

Upon learning the details of his cousin’s two convictions, Berndt expressed disappointment with the lawyers, the prosecutor, and the judge.

“More than anything else,” said Berndt, “it bothers me that when these guys learned that mistakes were made, they did not correct them.”

Berndt also disputed Gysegem’s claim that checking the charges is not the judge’s job.

“With a no-contest plea, the court has the independent obligation to review the charges and underlying facts in order to find him guilty or not guilty,” said Berndt. “For the court this is a worse position than if [Phillips] had entered a guilty plea.”

City law director Hicks said he doesn’t think the city did anything wrong.

Hicks maintained that Phillips was charged correctly in the second, felony case. However, when pressed, he would not say whether or not Phillips was charged correctly in the earlier case, only that the city didn’t do anything wrong because Phillips pleaded no contest to the charges.

Barnabee raises no objection to the initial felony charges in the second case, only to how the case was handled once Phillips was charged. She said that by plea bargaining the felony charge to a misdemeanor, the city again wrongly convicted Phillips under a nonexistent and unconstitutional law.

Before he knew he had been added to the suit, Gysegem scheduled a hearing on a motion to vacate Phillips’ convictions for December 3.

Barnabee said since Gysegem is now a defendant, he has the opportunity to recuse himself from hearing that motion.

If he does not do it, Barnabee said a motion to recuse him will be filed.

The case has been assigned to Judge Lesley Brooks Wells.

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