The Court ruled the testimony of an ex-federal prosecutor cannot be excluded from a trial because the prosecutor did not have his former employer’s permission to testify.

The Court ruled the testimony of an ex-federal prosecutor cannot be excluded from a trial because the prosecutor did not have his former employer’s permission to testify.

An ex-federal prosecutor might get in trouble for testifying in a state criminal case without his former employer’s permission, but a court cannot exclude his testimony for that reason, the Supreme Court of Ohio ruled today.

In a 6-1 decision, the Supreme Court found that the Hamilton County Common Pleas Court improperly ruled to exclude the testimony of a former prosecutor who agreed to testify against Sontez Sheckles. Sheckles was charged with attempted murder and other crimes for a 2019 shooting at a Cincinnati bar. On the morning of the trial, the trial court excluded the former prosecutor’s testimony because he had not produced a “Touhy letter” from the U.S. Department of Justice permitting him to testify.

Writing for the Court majority, Justice Jennifer Brunner explained that since 1951, when a U.S. Supreme Court decision was issued involving a federal employee named Touhy, the federal government has a right to limit the information current and former federal employees are allowed to divulge. Without the Touhy letter, the former prosecutor could not be forced to testify, but Touhy does not supply a basis for a trial court to exclude the testimony of a former federal employee who willingly testifies without the letter, the Court ruled.

“Decisions by courts addressing federal employees’ refusing to testify or provide records have been upheld,” Justice Brunner wrote. “But we find no legal support for a judge to rely on Touhy in order to forbid a federal employee, who is willing to testify, from testifying.”

The Court’s decision reversed a First District Court of Appeals ruling that allowed the trial court to exclude the testimony. In a related matter, the Court reversed a decision to exclude video surveillance camera footage from the bar. The Court remanded Sheckles’ case to the trial court for further proceedings.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Michael P. Donnelly joined Justice Brunner’s opinion. Eleventh District Court of Appeals Judge John J. Eklund, sitting for Justice Joseph T. Deters, also joined the opinion.

In a dissenting opinion, Justice Melody Stewart wrote the case raises important questions, but the Hamilton County Prosecutor’s Office appealed the trial court’s decisions too early in the process. She also stated that the prosecutor’s office forfeited one of its three legal arguments before the Supreme Court because it did not raise the issue with the lower courts. She would dismiss the case as having been improvidently accepted.

Trial Court Excluded Evidence at Preliminary Stage
Sheckles was indicted for an alleged November 2019 shooting at the Chalet Bar in Cincinnati. Sheckles requested the names and addresses of the witnesses the prosecutor planned to have testify. The office declined to disclose most of the witness information because it believed releasing the information would compromise the safety of the witnesses or subject them to intimidation or coercion.

The prosecutor did provide Sheckles with the name of one witness, Zachary Kessler, in April 2022. Kessler was a former federal prosecutor who prosecuted Sheckles in a federal criminal case that appeared to be related to Sheckles’ alleged crimes at the Chalet Bar. Sheckles agreed to plead guilty to the federal charges.

The state charges against Sheckles were set for a May 2022 trial. Sheckles objected to using surveillance video from the bar’s security camera because the video was compiled and edited by a police officer using the raw footage from the bar’s video system. The court granted a 13-day continuance prior to trial so the prosecutor’s office could provide a witness who could swear to the video’s authenticity. The judge warned the footage could be excluded if the prosecutor did not supply a witness to authenticate it.

The video issue resurfaced on the morning of the newly scheduled trial, and there was also a problem with Kessler’s testimony. The Court conducted a preliminary hearing on the matters before starting trial proceedings.

Sheckles asked the trial court to prevent Kessler from testifying because Kessler had not obtained a Touhy letter from his former employer, the U.S. Department of Justice, permitting him to testify. While Kessler had a copy of the letter on his phone, the court set aside the matter to give the prosecutor’s office time to obtain the actual letter. The court then turned to the video surveillance issue, and the prosecutor called the bar owner to testify to the video’s authenticity. The prosecutor also told the judge that the police officer who compiled the edited video could authenticate it, but it would be about 30 minutes before the officer could make it to court to testify. Instead of waiting, the court ruled the bar owner could not authenticate the video because she had not compiled the raw video. The court excluded the footage from being used at trial.

Later, on the same day, the court returned to the issue of Kessler and the Touhy letter. The judge stated the prosecution had ample time to obtain the letter, and because it had not, Kessler’s testimony was excluded.

Prosecutor Appeals Exclusions
After both decisions to exclude evidence were made at the hearing before the trial, the prosecutor filed an appeal with the First District Court of Appeals. Citing the Ohio Rules of Criminal Procedure, the prosecutor’s office argued it could immediately appeal because the trial court’s exclusion had rendered the prosecution’s proof “so weak in its entirety that any reasonable possibility of an effective prosecution had been destroyed.”

The First District affirmed the trial court’s decisions, and the prosecutor appealed to the Supreme Court. The Court agreed to hear the prosecutor’s arguments against excluding Kessler’s testimony. The Supreme Court’s opinion today stated it expressed no opinion on the accuracy of the First District’s decision to exclude the video evidence.

Supreme Court Analyzed Testimony Exclusion
Justice Brunner explained that in its 1951 United States ex rel. Touhy v. Ragen decision, the U.S. Supreme Court ruled that the U.S. attorney general had the authority to regulate how federal agencies respond to subpoenas and requests for documents. The rules are often referred to as Touhy regulations.

One of the rules states that in any federal or state case, where the federal government is not a participant, no U.S. Department of Justice employee or former employee can produce any information from the department’s files without prior approval. The opinion stated the rule generally prohibits the release of information but allows the department to permit one of its current or former employees to testify or produce records.

The opinion noted the federal regulations indicate that the rules are only intended to guide the internal operations of the justice department and cannot be “relied upon to create any right or benefit” that can be enforced against the federal government.

Justice Brunner wrote that the Touhy rules are designed to provide a process for releasing requested information, but they do not govern the procedures used in state courts to determine whether evidence can be admitted. The rule does not give a criminal defendant the right to exclude the testimony of a federal government employee willing to testify without the approval of the justice department.

“Sheckles held no rights under Touhy that could be asserted in support of his request to exclude Kessler’s testimony. The trial court should not have excluded Kessler’s testimony on that basis,” the opinion stated.

The Court also explained that Kessler’s lack of a Touhy letter was not grounds for excluding it for a second reason. The opinion stated the Court applies the exclusionary rule when the trial court finds that admitting the evidence would violate a constitutional right. The Court noted that criminal defendants cannot generally seek to exclude evidence based on an alleged violation of a rule or statute. Because the Touhy letter requirement is a regulation, the prosecution’s failure to produce a Touhy letter cannot be a reason to exclude Kessler’s testimony, the Court concluded.

The Court noted that its decision permits the proceedings to resume in the trial court, and the prosecution can again seek to introduce the video evidence with the proper authentication and allow Kessler to testify.

State Forfeited Argument and Should Have Proceeded to Trial Before Appeal, Dissent Maintained
In her dissent, Justice Stewart wrote that the appeal raised important questions but should not have been considered because of procedural issues. First, she stated that the prosecutor’s office forfeited one of its three arguments.

Justice Stewart explained that while the prosecutor’s argued that the trial court unfairly placed the burden on the prosecution to prove that Kessler could testify without a Touhy letter in this appeal, the prosecutor did not make that argument to the First District. Rather, one of the First District judges raised the issue, and since the prosecutor did not raise the issue below, the state could not raise the issue with the Supreme Court, the dissent concluded.

Second, Sheckles raised the issue of the Touhy letter before the trial through a motion in limine. Those motions are preliminary in nature and inform the parties what the trial court would likely rule if the issue were made during the trial.

The prosecutor’s office argued it had no choice but to appeal to the First District and stop the trial from proceeding based on the pretrial motions to exclude the testimony and the video evidence. However, the state did not attempt to produce the evidence at trial or wait until the evidence was rejected at trial before appealing. She noted the prosecutor’s office did not even offer the copy of the letter on Kessler’s phone, despite the trial judge’s request to see it.

“Without more factual development and a final versus preliminary evidentiary ruling, I am reluctant to resolve the serious question raised in this case,” Justice Stewart wrote.

2023-0294. State v. Sheckles, Slip Opinion No. 2024-Ohio-3339.

View oral argument video of this case.

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