Former Ohio Prosecutor Who Added Count To Indictment Over Objections Of Colleagues and Then Signs False Indictment . . . Will Be Allowed To Resume Practice In One Year

250px-Seal_of_the_Supreme_Court_of_Ohio.svgA former prosecutor in Ohio, Jason Phillabaum of Cincinnati, has had his law license suspended for a year after pleading guilty to adding a charge to a criminal indictment and then signing the document. Frankly, I am astonished that the Ohio bar considers this misconduct as warranting only a year suspensions as opposed to disbarment. This constituted not only the creation of a false indictment and false filing but the denial of basic constitutional rights and protections in our system. It is hard to image a more serious form of prosecutorial misconduct and yet he will be practicing again in Ohio in a matter of 12 months?

What is truly amazing is that not only was no evidence presented to the grand jury on the added charge but the prosecutor responsible for the case refused to sign the indictment. Even a secretary had balked at adding the count. However, even with both objecting to the clearly unethical conduct, Phillabaum persisted and ultimately signed the false indictment himself. Here are the facts as laid out by the Ohio Supreme Court:

On December 13, 2010, assistant prosecutor Josh Muennich presented
the case against Tyree Johnson to a Butler County grand jury in Phillabaum’s absence. He instructed the grand jury to vote on charges of aggravated robbery and felonious assault, but did not present any evidence on any gun specifications related to the crime and did not instruct the jury to vote on any such specifications. Phillabaum reviewed the indictment on December 20, 2010, and instructed a legal assistant in the prosecutor’s office to add gun specifications to the indictment. The legal assistant told him that the gun specifications had not been included because Muennich had not presented them to the grand jury, and for that reason she felt uncomfortable adding them to the indictment. But when Phillabuam insisted, she complied. Muennich refused to sign the indictment containing the gun specifications, since he had not presented that evidence to the grand jury, but Phillabaum signed it, knowing that it contained a false statement and would be filed with the clerk of courts. After Phillabaum’s conduct came to light, the Butler County Prosecutor presented the case to the grand jury a second time and obtained a superseding indictment that included the firearm specification.
{¶ 6} On May 3, 2012, Phillabaum was indicted on two counts of forgery, one count of dereliction of duty, two counts of tampering with records, one count of interference with civil rights, and one count of using a sham legal process, all arising out of his conduct in the Johnson case. He pleaded guilty to a single count of dereliction of duty, a second-degree misdemeanor, and was sentenced to 90 days in jail, all suspended on the conditions that he successfully complete one year of community control and perform at least 75 hours of community service.

So Phillabaum is allowed to plead guilty to a second-degree misdemeanor with 90 days suspended for this premeditated falsification of a legal document? Is this how the prosecutors in Ohio treat non-prosecutors accusing of serious misconduct?

Now, in addition to a remarkable plea bargain, Phillabaum will only have to give up his license for a year after showing absolute contempt for both criminal laws and legal ethics. Many attorneys have long objected that prosecutorial misconduct is treated too lightly by courts and state bars — fueling prosecutorial misconduct with a sense of immunity from the worst prosecutors.

PEPcolorfrenchBelieve it or not, this was actually a tougher sanction than requested by Ohio’s Board of Commissioners on Grievances and Discipline. (Two justices — Paul Pfieffer and Judith French — actually dissented because they considered this sanction as too severe and favored the Board recommendation). For its part, he Board recommended a suspension of one year, with six months stayed on the condition Phillabaum engage in no further misconduct. So the supposed defender of legal ethics in Ohio wanted to allow Phillabaum to be able to resume practicing as a lawyer in six months. Six months . . . and we wonder why the public holds us in such low regard.

Here is the decision: Phillabaum decision

19 thoughts on “Former Ohio Prosecutor Who Added Count To Indictment Over Objections Of Colleagues and Then Signs False Indictment . . . Will Be Allowed To Resume Practice In One Year”

  1. The Massachusetts Board of Bar Overseers is one of the worst in America.

    Witness the 2011 suspensions of two attorneys, one “misappropriated” $4 million of client’s funds and received a one year suspension.

    In a separate case, the other attorney received a six month suspension for “misappropriation” of an unknown amount.

    Court appointed trustees, guardians and conservators are “allowed” to do what they see fit with other people’s money, with court approval and such conduct, especially against the elderly, is happening in every probate court in America.

    Unfortunately, there is no investigative journalist who will investigate. And, the pretend oversight is just that, pretend oversight. Rules 3:07 and 3:09 mean nothing.
    Sworn & Commissioned Officer, Massachusetts Trial Court (Retired)

  2. Will this unethical lying attorney continue to be employed as a prosecutor so that he can violate his oath of office and the constitutional rights of the accused

    1. You mean people actually have ill will against the criminal class that have usurped my Inalienable right to represent myself or others in criminal proceedings? (Sounds good to me)

  3. The Bar Ass’s are a criminal organization in and of itself, so this does not surprise me, they are just more open about it these days.

  4. Yeah, this is a real deterrent for other prosecutors to not abuse the massive discretion they already have at their disposal. They need to pull this guy’s ticket to practice period.

  5. “Attorneys [& AG’s/Prosecutors, by inference] are officers of the court and held to a higher standard” – JT.

    OH … REALLY? Don’t make me laugh.

  6. Paul S

    That is a good start, but there should also be some REAL punishment, like having to watch Wolf Blitzer every day for a year.

    Thanks to Prof. Turley for focusing on this.

    A prosecutor in the US committing the most egregious of crimes, is merely slapped on the hand. No prison, no loss of his legal license. Being a criminal and a prosecutor go hand in hand in the land of the free.

    I would have had the SOB dancing at the end of a rope if it were up to me.

  8. Some (not all) in the Judicial Branch have been the real weak-links in upholding the constitutional rule of law in the United States and have essentially deemed “Marbury v. Madison” impotent.

    Maybe starting with the so-called “War on Drugs” which was put on steroids with the so-called “War on Terror” they have destroyed the American justice system. (Ex: landmark U.S. Supreme Court case “Terry v. Ohio”).

    Today roughly 80+% of all blacklistees on Terrorism Watchlists have absolutely no links to terrorism or any wrongdoing at all. Judges and Justices deserve most of the credit for not providing Judicial Review of the other two branches.

  9. Groups that police themselves are doomed to take actions like this. We have all seen the exact same behavior with Doctors, Dentists, Police, etc. Any group that self polices is doomed to eventually take this same action. I’ll scratch your back, you scratch mine

    I am not surprised at all.

  10. Chicken S**t by the Bar and by the Judges. Guy knowingly obfuscated. He should find another profession. Oh, wait, it is no longer a profession. In fact it moved toward business and has now become an industry. Run by bean counters.
    In some locales it is still a Profession, though. I think the Bar in neighboring Commonwealth of Kentucky would not allow this to happen, as the Bar there is still a group tied to the principles of honorable service to the law.

  11. The guy has an odd name. He sounds like a bum in Philadelphia. The defendant named in that false indictment needs to sue him in federal court for civil rights violation. The dork prosecutor would lose his prosecutorial immunity.

  12. Yes, JT. “I’m shocked to learn” attorneys take care of their own. “Just shocked!” You do a great Claude Rains.

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