Man Jailed Under Voided ‘Importuning’ Law Sues City
Ohio Supreme Court Struck Down Law Seven Months Earlier
Gay
People’s Chronicle, November 14, 2003
P.O. Box 5426, Cleveland, Ohio 44101
Fax 216-631-1052
Email chronicle@chronohio.com
By Eric Resnick
Youngstown—A gay man has filed a $10 million
federal lawsuit against the city of Warren after he was convicted and jailed
for “importuning” seven months after the Ohio law against it was struck
down.
The law had made it a crime to proposition someone of the same sex if it
would offend them. It was found unconstitutional by the Ohio Supreme Court in
May 2002, partly because the same act is legal for heterosexuals.
The city of Warren repealed an identical ordinance on November 13, 2002, as
it brought its city code in line with changes to Ohio law.
But a month later on December 16, Keith E. Phillips of Youngstown was
charged with breaking the Warren ordinance.
Unaware the measure didn’t exist, Phillips pleaded no contest two days
later. He was given 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.
Shortly afterward he found out that he had been jailed for breaking a
nonexistent law.
Phillips, 21, filed suit November 12 at the U.S. District Court of Northern
Ohio in Youngstown.
Defendants in the suit are the city of Warren and its municipal court,
attorney and state senator Marc E. Dann of Youngstown and his employee,
attorney Benjamin Joltin, who represented Phillips in the second importuning
case.
Also named are social workers Linda L. Blum of Cortland and Stanley J.
Palumbo of Youngstown, who prepared a pre-trial report on Phillips, and their
employer, the Forensic Psychiatric Center of Northeast Ohio in Youngstown.
Wayne A. Trimble of Warren, who was involved in the second case, is also
listed.
The suit alleges 16 counts of violations to Phillips’ civil rights under
federal and Ohio law, including denial of due process and equal protection,
false arrest, false imprisonment, legal malpractice, libel, negligence,
assault and battery.
Phillips was convicted and sentenced by Warren Municipal Court Judge Thomas
P. Gysegem. The case was prosecuted by Warren Assistant Prosecutor Traci Rose.
Prosecutors and judges are responsible for making sure that defendants are
tried only for breaking existing laws. Both have personal immunity, but are
employees of the city.
Gysegem’s sentence came after a court-ordered evaluation by Blum, who is
supervised by Palumbo.
The complaint alleges that Blum and Palumbo libeled Phillips in their
report to the judge by “incorrectly labeling [Phillips] as having [a]
clinical disorder” and “incorrectly and negligently assessing [Phillips]
as a ‘Medium-High’ risk for reoffending.”
In that report, Blum entered a diagnosis of “paraphilia, not otherwise
specified.” “Paraphilia” means sexual desires outside the norm. Until
the 1980s, the diagnosis was given to all gays and lesbians.
Blum based her conclusions on Phillips’ statement that he participated in
gay chat rooms, “his having an unrelated victim, a male victim, and that
Phillips is under the age of twenty-five,” and that the 20-year-old had
“never lived with a lover or committed partner for at least two years.”
Phillips’s second importuning arrest occurred at work on April 16. This
time he was charged with felony importuning under a section of the law still
in effect that deals with juveniles.
The arrest occurred two days after Phillips was chased in his car by
Trimble.
The complaint alleges that while in their yard playing horseshoes,
Trimble’s 14-year-old stepson identified Phillips’ passing car as the one
whose driver had asked him if he wanted oral sex three days earlier.
Phillips says Trimble and the youth chased him in their car until they had
him cornered in the parking lot of a shopping center across the street from
where Phillips worked.
Phillips says Trimble opened his car door, punched him in the head, and
removed Phillips’ keys from his ignition.
Once on the scene, Warren police refused to take Phillips’ statement.
Phillips’ grandmother, Barbara Berndt, later contacted state senator Dann
to see if he would represent Phillips in the second importuning charge.
The complaint says that Dann told Berndt he could not personally represent
Phillips because Gysegem had consulted with him as to what kind of sentence to
impose on Phillips in the earlier matter, and that Joltin could represent him.
The court set Phillips’ bond at $10,000, which he could not pay.
Joltin attempted to have the bond reduced, but Gysegem refused, causing
Phillips to spend 23 days in jail before trial.
Phillips says that his domestic partner, Matt Callahan, presented Joltin
with Phillips’ time card and four co-workers willing to testify that he was
at work during the time the youth said he was solicited.
The complaint states, “Joltin’s answer was always the same: If they
revealed the exculpatory evidence to the prosecution, the prosecution would
just find a way around it.”
Phillips contends that on the day of his probation review hearing before
Gysegem, Joltin told him, “Keith, they are not going to let you out. What
they have provided me with [as a plea bargain offer] is 120 days to be served
in jail, and there will be no probation violation [from the first case].”
“Is there any way you can get them to go lower? Did you show them what I
showed you [the exculpatory evidence] about my alibi?” asked Phillips.
Phillips says Joltin told him, “Keith, the prosecutor wants you in jail
longer. It would be different if you weren’t here four weeks ago for the
same thing. And besides that, Gysegem has a hard-on for you. He wants you
bad.”
In return for Phillips’ plea of no contest, prosecutor Rose reduced the
charge to misdemeanor importuning—the city ordinance that no longer
existed—and Phillips was fined and sentenced to 180 days in jail, with 60
suspended.
Phillips says he took the deal under advice from Joltin, saying Joltin told
him, “There are some things that are just not worth fighting for.”
None of the defendants had seen the complaint at press time, due to the
federal court’s rules on serving them with it.
Also filed November 12 was a motion to vacate Phillips’ earlier
sentences. That motion is the only form of legal relief available to Phillips
because the time to file an appeal lapsed while he was in jail. It will be
heard by Gysegem.
If granted, that motion would effectively end all prosecution of Phillips
until the federal matter is resolved.
Phillips’ attorney, Randi Barnabee of Northfield Center, said if Gysegem
does not grant the relief, she will have grounds to seek a temporary
restraining order against the city in federal court.
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