No Hearing Date Set For AG’s Motion To Compel Sheriff’s Compliance With Subpoena

By
Tom Hodson

Dateline
Updated Mon, Sep 16, 2013 3:58 pm

At this time, no hearing date has been set on the Motion to Compel compliance with a special grand jury subpoena by the Ohio Attorney General’s office against the Athens County Sheriff. The motion was filed Friday as part of the ongoing investigation of the Athens County Sheriff Pat Kelly.

The motion asks Athens County Common Pleas Judge L. Alan Goldsberry to compel Sheriff Kelly to “produce records responsive to a grand jury subpoena properly issued in connection with a sitting special grand jury.”A copy of the motion and its supporting memorandum of law is below.

Court Documents: Motion to Produce

The motion also requests, due to the sensitive nature of the material requested, that the judge conduct the hearing outside the presence of the public.

The legal memorandum attached to the motion argues that the sheriff has no grounds for the subpoena to be quashed and that grand juries have broad subpoena powers.

The memorandum also states that Sheriff Kelly’s contentions that compliance with the subpoena would endanger confidential informants are “unreasonable and unfounded.” The memorandum also stated: “The State of Ohio’s grand jury subpoena is not unreasonable or oppressive. Moreover, no privilege exists for the Athens County Sheriff Patrick Kelly to withhold the requested material.”

Monday, in an exclusive interview with WOUB, Ohio Attorney General Mike DeWine said that the information requested in the contested subpoena is “essential to the investigation.” He also said that Attorney General’s office would not have asked for the list of informants if they were “not essential.”

He reiterated that no names would be made public. Listen to the Attorney General’s comments here.

Initially, Sheriff Kelly refused to comply with the subpoena and requested protection through a letter to Common Pleas Judge George McCarthy. However, Judge McCarthy found that the Sherriff’s request was not properly made.

Then, the Athens County Prosecutor Keller Blackburn, on behalf of the Office of the Sheriff and not Kelly himself, informally sent a letter to Assistant Attorney Generals William F. Schenck and James C. Roberts asking to meet to try to reach an agreement to limit the scope of the subpoena. That meeting took place but no resolution was forthcoming.

Friday, the Attorney General’s Office filed the Motion to Compel and Prosecutor Blackburn delivered a letter to the Sheriff outlining the prosecutor’s opinion on this matter. A copy of the letter obtained by WOUB is below.

Keller Blackburn Letter To Pat Kelly

Blackburn gave Kelly a way to avoid a hearing on the motion to compel. The letter reads: “On behalf of the County Sheriff’s Office, I have contacted the State Attorney General’s Office to request the narrowing of the scope of the subpoena in regard to confidential informants. If you are willing to comply by Monday, September 16, 2013, the Attorney General’s office would accept a date modification for records dated Jan., 1, 2009 through present.”

This compromise would limit the extent of the Attorney General’s request. As of this writing, Sheriff Kelly has not complied.

Blackburn, in his Friday letter, also specifically advised the Sheriff to comply with the subpoena: “There is not a legal basis to quash the subpoena. However, the confidential informant records would remain confidential pursuant to the rules and laws governing Grand Juries as well as Ohio Revised Code Section 149.43 (A) (1)(h).” [an exception to the Public Records law]

“It is the advice of the Athens County Prosecutor’s Office to the Office of the County Sheriff to comply with the subpoena,” Blackburn added.

He also advised the Sheriff that he should seek private legal counsel if he thinks he would need one. “The Athens County Prosecutor’s Office represents the Office of the Athens County Sheriff and not you individually. The Office of County Prosecutor is not able to provide legal advice or represent Patrick Kelly. If you feel you need representation for your own criminal or civil liabilities, you will need to hire a personal attorney,” Blackburn stated.

In short, Kelly is only entitled to representation in his official capacity and if allegations allege a breach of his “fiduciary duty” then he must pay for his own attorney. As of this writing, no private counsel has appeared for Kelly.

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