Grand jury clerk Lisa Stapf testified she talked to Phillabaum about the Johnson indictment, pointing out no evidence or instructions were presented to the grand jury about guns specification charges.
“I said grand jurors weren’t instructed and didn’t vote on it,” Stapf said. “He (Phillabaum) said ‘well just go ahead and add them.’ ”
Stapf said she took it as an order from Phillabaum, who was thought to be “heir apparent” to the prosecutor’s office when the Prosecutor Robin Piper was elected to the 12th District Court of Appeals.
What she did weighed on her conscious, Stapf said, but she waited to come forward until Gmoser took office “because I didn’t think it would be well-received ... I was afraid.”
After a hearing in March, Visiting Judge Guy Guckenberger reviewed unsealed grand jury transcripts and noted the transcripts do not show what charges were actually presented, but the grand jury votes clearly show the absence of the charges in question.
On Thursday, Guckenberger was more specific about the indictment issued last year against Johnson, then a 17-year-old being held on multiple counts of felonious assault and robbery.
“There’s no question the December indictment was defective,” Guckenberger said.
On Thursday, Jill Groves, a grand jury clerk, testified she, too, was told to change an indictment in the Saylor case by Phillabaum.
Grove said there was no testimony presented to the grand jury about a weapons under disability charge. But when Phillabaum told her to make the addition, Groves said she did so.
“I typed it the way he wanted it,” she said, adding had she not “I think he would have terminated me.”
She later disclosed the incident to Gmoser, “because I just didn’t believe it was right what he did ... Abusing his power and making us do things we shouldn’t have been doing.”
Johnson’s attorneys, Ken Crehan and Jeff Bowling, argued the new indictment issued in March to fix the defective one should be dismissed and their client freed because the entire case has been prejudiced by prosecutorial misconduct. Crehan said the two indictments - as well as other several other past cases - demonstrate a pattern of misconduct.
Guckenberger ruled the superseding indictment in the Johnson case was enough to correct any misconduct and ordered the case would proceed to trial, which is scheduled to begin Monday.
Saylor was permitted earlier to withdraw his guilty plea to the defective charge and he is currently serving three years in prison after pleading guilty to the other felony charges.
Defense attorneys, assistant prosecutor Josh Muennich and Gmoser testified as part of the day-long hearing. Phillabaum was not present. His attorney, Mike Allen, filed a motion to have Phllabaum’s subpoena quashed.
Christopher Wagner of the Ohio Attorney General’s office was present for the hearing. He has been appointed as special prosecutor to investigate the allegation of misconduct against Phillabaum involving the grand jury indictments. He declined comment and could not give a time line about when the investigation would be completed.
Phillabaum referred all comments to Allen, who said the entire matter is politically motivated. Allen said Phillabaum is still weighing his options and may run for prosecutor again in 2012.
“I can tell you one thing, he will not be deterred by this,” Allen said, he called the hearing “nothing more than a side show.”
Contact this reporter at (513) 820-2168 or lpacK@coxohio.com.
About the Author
