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Judge sanctions prosecutors for attempt to depose jail suit lawyer

Attempt ‘nothing more than a fishing expedition’, judge rules.

Attorneys with the Montgomery County Prosecutors Office acted unprofessionally when they filed motions accusing a lawyer suing the county of involvement in a criminal conspiracy in an effort to depose him, according to a June 1 order from federal court Magistrate Judge Sharon Ovington.

Ovington ordered the prosecutor’s office to pay attorney fees to Doug Brannon, an attorney representing Joseph Guglielmo, who is suing the county alleging he was severely beaten in the Montgomery County jail.

Attorneys defending the county in the Guglielmo civil suit sought to depose Brannon and a former jail sergeant who they claim stole public records used in a separate lawsuit.

Ovington directed both sides to “tone down the rhetoric” in the latest chapter of a complex saga including 11 lawsuits alleging mistreatment of inmates at the jail.

RELATED: Former inmate files lawsuit against Montgomery County JailThe county on Friday filed a motion to seal the judge’s 28-page order to give them an opportunity to object. The Dayton Daily News obtained a copy of the order from the court.

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Attorney Douglas Brannon. JIM WITMER / STAFF (Staff Writer)

Brannon is one of several attorneys representing Guglielmo, a veteran who was taken to the jail after a disturbance at a area homeless shelter in January 2015. Guglielmo says he was beaten by corrections officers before he was taken to the hospital with head injuries that left him wheelchair-bound. The county claims Guglielmo had head injuries from fighting at the shelter before getting to the jail.

RELATED: County blames health care provider for jail inmate’s injuriesIn an effort to prove “the pattern and practice of excessive use of force at the Montgomery County Jail,” Brannon submitted as evidence in the case a video of former inmate Amber Swink being pepper-sprayed while unable to move in a restraint chair.

Swink settled her lawsuit in April 2017 for $375,000. The sergeant who pepper-sprayed her, Judith Sealey, pleaded guilty to disorderly conduct and surrendered her law enforcement certification last month. 

But questions remain about how the pepper-spray video disappeared from county records. It only became public when Brannon, who represented Swink, posted a copy of it on his website.

County officials say the video was stolen from the county by former Sgt. Eric Banks. Banks’ role in how the pepper-spray incident became public has emerged in his court testimony in the Guglielmo suit and interviews with the Dayton Daily News. Banks told the Daily News that he gave a copy of the video to attorneys and also told the FBI about it because he feared the county would try to cover up the pepper-spray incident. 

“Banks testified under oath that he allegedly engaged in a conspiracy with former employee Ransley Creech and Attorney Doug Brannon in the year 2016 to steal Montgomery County Sheriff Office property,” says a March 15 filing by county prosecutors. Prosecutors said in the filing that they wanted to depose Brannon and Creech, another former sergeant.

RELATED: Former jail sergeant alleges cover-up of pepper-spray incident“The Court should note that Defendants are not stating that anyone engaged in criminal conduct as Defendants have no firsthand knowledge of their actions,” says the county’s filing, which was unsealed Friday. “Rather, Defendants are citing the Court to the sworn testimony of Eric Banks given earlier this month in which he states facts that could be construed to constitute a crime.”

Ovington wrote that the county provided a “gross mischaracterization” of Banks’ testimony, in which he clearly said that what he did “was absolutely legal.” The judge also noted that no one has been charged with such a crime.

The original video and other records of the incident disappeared after they were sent to the major in charge of the jail, according to an internal affairs report obtained by the Daily News.

RELATED: No cover-up of pepper-spray incident, sheriff’s investigation findsIn court filings, Brannon calls the county’s claims “clearly an attempt to intimidate counsel from pursuing this case as well as the other cases in which Douglas Brannon is pursuing against the Montgomery County Sheriff’s department on behalf of his clients.”

Brannon said the county also filed a complaint against him with the Ohio Bar Association.

Ovington’s ruling prevents the county from deposing Brannon.

“Defendants’ attempt to depose Mr. Brannon appears to be nothing more than a fishing expedition,” she wrote. “Defendants’ implication that he regularly assists his clients in committing crimes lacks any support in the record, insults Mr. Brannon, and reflects poorly on the professionalism of the Montgomery County Prosecutor’s Office and (its hired) attorneys.”

The judge ordered the county to repay Brannon for fees and expenses related to their attempts to depose him.

Contacted for comment Monday, Brannon said: “It’s unfortunate that the county and the county defendants have engaged in this continuous course of conduct.”

Prosecutor’s office spokesman Greg Flannagan released a statement Monday saying the court filings seeking to take a deposition of Brannon was signed and filed by the insurance company’s attorney, and not prosecutor’s office attorneys. He said the county has not filed any ethics complaints against Brannon.

Flanngan said the Montgomery County Prosecutor’s office is considering filing an objection to the judge’s ruling, saying the office was “very disappointed by the decision and order, and the tone of the decision and order, as written by Magistrate Ovington.”

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