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

A 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.

Believe 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