Tuesday, Jan. 26, 2016
Anthony Belton v. State of Ohio, Case no. 2012-0902
Lucas County Common Pleas Court
School Choice Ohio, Inc. v. Cincinnati Public School District and Springfield City School District, Case no. 2014-0749
Original Action in Mandamus
Lorain County Bar Association v. Mark R. Provenza, Case no. 2015-0060
Lorain County
Death Penalty
Anthony Belton v. State of Ohio, Case no. 2012-0902
Lucas County Common Pleas Court
Anthony Belton of Toledo was charged in 2008 with the murder of a convenience store clerk at a gas station. After Belton waived his right to a jury trial and pled no contest, a three-judge panel found him guilty of murder and other charges and then sentenced him to death. Belton is appealing his death sentence and convictions.
Clerk Killed in Early Morning Robbery
On the morning of Aug. 13, 2008, a woman stopped at a Toledo BP service station to pick up a muffin and coffee. No one was attending the counter. As the woman left, she glanced back through a window and saw a man surrounded by blood on the floor behind the counter. She called 911.
The clerk, Matthew Dugan, had died from a gunshot wound to the back of the head. According to the store owner, a number of prepaid phone cards and approximately $600 in cash also had been taken. Security video showed a man entering and exiting the store three times that morning, minutes apart. The third time, the man walked up to the counter with two bottled drinks and then pointed a gun at Dugan. Dugan gave cash to the man and handed over other items. The man subsequently made motions toward something behind Dugan. When the clerk turned around in that direction, the man shot him.
Information led police to Belton, who was arrested along with two other men. Belton gave varying accounts to police about the events of that morning. With Belton’s help, police searched the yard of the house where he was living and found a 9 mm gun.
Defendant Waives Jury Trial
Belton was indicted in August 2008 on one count of aggravated murder and two counts of aggravated robbery, and each charge included the possibility of an additional punishment, called a specification, for using a firearm.
Numerous motions were considered by the trial court during pretrial proceedings. In 2010, Belton waived his right to a trial by jury and opted to have his case heard before a three-judge panel. According to the state’s brief, Belton signed another waiver in March 2012 and again the next month. He then pled no contest to the charges. The panel convicted Belton of all the alleged crimes.
Belton’s lawyer requested that a jury be required for the part of the trial that reviews mitigating circumstances, but the court denied the motion. On April 5, 2012, the panel determined the one aggravating factor outweighed the mitigating circumstances, and sentenced Belton to death.
In the appeal to the Ohio Supreme Court, Belton’s attorneys present 20 arguments challenging the convictions and death sentence.
Belton’s Claims
Among the assertions made in Belton’s brief to the Court:
- R.C. 2929.11, which was amended in 2011, states that felony sentencing is designed to protect the public from future crime and to punish the offender “using the minimum sanctions” and without overburdening state and local resources. Belton’s attorneys point to data showing that death-penalty cases cost much more than non-death-penalty cases, which immensely drains state and local resources, they argue. In addition, “given that a [life without parole] sentence protects the public from future crimes by the offender just as effectively as a sentence of death, the moral rationales underlying Ohio’s death penalty are no longer valid,” they write. A life without parole sentence is the minimum sanction needed to the meet the felony sentencing purposes described in state law, and because Belton’s trial attorney didn’t raise this argument, Belton was denied effective assistance of counsel, his appellate lawyers assert.
- Belton’s attorneys cite two U.S. Supreme Court rulings requiring that a jury decide every fact necessary to put a defendant to death. In their view, Belton was entitled to have a jury decide his punishment after the panel found him guilty. Even when a defendant accused of a capital offense pleads guilty or agrees to a trial with judges rather than a jury, Belton’s attorneys maintain that the defendant later has the right to have a jury consider and weigh the aggravating circumstances against any mitigating factors to determine whether a death sentence is appropriate.
- They also contest the use of lethal injection as the method of imposing death in the state, describing it as cruel and unusual punishment. They note there is no way to challenge the constitutionality of this method in state courts, based on the statute and a 2010 Ohio Supreme Court decision (Scott v. Houk) on this issue, and they assert the lack of a remedy alone makes lethal injection unconstitutional.
- They additionally argue that Belton’s rights were violated by the trial court’s denial of various motions during pretrial and the admission of certain evidence before the panel and that the state didn’t prove its case beyond a reasonable doubt.
State’s Responses
On behalf of the state, attorneys from the Lucas County Prosecutor’s Office respond with several arguments:
- They contend that nothing in the bill that amended R.C. 2929.11 indicates the legislature intended to abolish Ohio’s death penalty. They explain that other statutes in that chapter permit sentences of either life imprisonment or death for certain crimes and describe the criteria for imposing death. Taken together, the laws can be interpreted to give effect to all of them because no conflict exists, they assert. In addition, capital punishment serves the felony sentencing purpose of punishing the offender and “legitimately serves the punitive interests of incapacitation, retribution, and deterrence of future capital crimes by other individuals,” they write in the brief to the Court. The fact that Belton’s attorney didn’t present the “minimum sanction” argument at trial doesn’t rise to the level of ineffective assistance of counsel and didn’t change the outcome of the trial, they maintain.
- They counter that the Ohio Supreme Court held in 2006 (State v. Ketterer) that a capital defendant who pleads guilty or no contest hasn’t been denied the constitutional right to have a jury decide the penalty for the crimes. They also argue that neither of the two U.S. Supreme Court cases cited by Belton’s attorneys require a jury to be empaneled to determine a defendant’s punishment when the defendant waives a jury trial. Examining mitigating factors in a capital case isn’t a fact-finding activity that needs a jury, but instead is a process of weighing the mitigating and aggravating circumstances to make a judgment whether death may be imposed, they maintain.
- On the lethal injection procedure, the state’s attorneys assert that the U.S. Supreme Court hasn’t held the method to be unconstitutional overall. While the Ohio Supreme Court ruled the legislature offered no legal method for challenging the use of lethal injection, the Court concluded steps are available in federal courts. The state’s attorneys contend that the lack of a way to challenge lethal injection in state courts doesn’t invalidate its use.
- They maintain that Belton’s motions denied by the trial court were meritless, that evidence was properly admitted before the panel, and that the state proved its case beyond a reasonable doubt as defined in state law.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Anthony Belton: Spiros Cocoves, 419.241.5506
Representing the State of Ohio from the Lucas County Prosecutor’s Office: Evy Jarrett, 419.340.5931
Must Public School Give Private School Advocate Student Names and Addresses?
School Choice Ohio, Inc. v. Cincinnati Public School District and Springfield City School District, Case no. 2014-0749
Original Action in Mandamus
ISSUES:
- Can a public school district deny a request for student “directory information” from a non-profit organization affiliated with private schools if the district passes a policy giving the superintendent discretion to release the information?
- If a school district doesn’t designate any student information as “directory information” using the requirements of the federal Family Education Rights and Privacy Act of 1974 (FERPA), can it deny releasing the records citing the federal law as the reason?
- If FERPA allows directory information to be released unless a parent requests it not, does the Ohio public records law require the directory information be released to a non-profit organization?
- If the public school district releases the directory information to other organizations, does R.C. 3319.321(B)(2)(a) require it be released to all organizations that qualify by law to receive it?
BACKGROUND:
Ohio lawmakers have gradually expanded the availability of Educational Choice Scholarships to 14,000 students attending or entering “low-rated” schools as designated by the Ohio Department of Education. School Choice Ohio, Inc. (SCO), a non-profit organization, provides the parents and students in low-rated schools with information about their school choice options and the availability of scholarships. To reach those eligible, SCO makes public records requests from districts with low-rated schools. The SCO asks for information that qualifies as “directory information” under FERPA and can be released by a school district without parental consent, unless a parent has specifically requested a school district not release it.
FERPA, in general, prohibits education records and “personally-identifiable information” about students be released to anyone other than students and their parents. However, it gives districts the options of designating and releasing certain information that the federal government deems not harmful, such as names, addresses, participation in activities and sports, achievements, honors, and dates of graduation. That data can be distributed if the district provides notice to parents that it intends to make it public and gives parents time to opt out if they don’t want the information released.
SCO indicated that for several years it received directory information for many school districts including Springfield City Schools, but in January 2013, Springfield denied the records request to provide information from students in seven schools on the state low-rated list. Springfield cited the passage of a new school district policy, “JO,” as the reason for denial. Under JO, the district stopped designating any personally-identifiable information as “directory information” and stopped sending the FERPA-required notice to parents to opt out. It was replaced with the district’s new “Consent for Disclosure of Student Information for Superintendent Approved Purposes.” Using the new form, the district collected essentially the same directory information. However, it told parents it would only release the information if the parents actually signed a form approving its release and then it would share the information only for purposes approved by the superintendent.
SCO complained to the school district in February 2014 that while its request for the information was denied, similar requests to a local community college as well a civic groups and other health and educational organizations were approved. Springfield told SCO that the federal law allowed it to use its discretion and that it chose not to designate the information for public use. Since it didn’t notify parents of the chance to opt out, it would be against the federal law to release it to them, the district stated.
SCO countered that under the state public records law, R.C. 149.43, that if Springfield collected names and addresses, it had to make them public regardless of whether it was labeled directory information or not. The group argued that the district at least has to provide the information for students whose parents signed the form permitting the information to be released. In addition SCO cited R.C. 3319.321(B)(2)(a) contending that if the district provides the information to one organization, it must treat all similar organizations the same, making SCO entitled to it. The district countered that the same law also allows it to withhold the information from groups that intend to use it for “profit-making” activity, and the district considered SCO marketing of private schools as profit making.
SCO filed a writ of mandamus with the Supreme Court to compel Springfield to turn over the requested information, and the Court agreed to hear the case. It had a similar request with Cincinnati City Schools, but the two sides settled the case and only Springfield remains before the Court.
Springfield Can’t Put Own Limits on Records, SCO Argues
Attorneys for SCO argue that Springfield isn’t following the public records law, but using FERPA as shield to prevent the information from being released. Springfield used R.C. 149.43(A)(1)(v), which deems “records the release of which is prohibited by state or federal law,” as being non-public records that do not have to be released. The attorneys argue that FERPA doesn’t prohibit the directory information from being released, it just sets up a process that has to be followed to release it. Since it isn’t prohibited by federal law, it can be released, they contend, and under Ohio’s public record act, it must be released.
“Springfield, however, does not have the authority to except records from Ohio’s Public Records Act by unilaterally changing an internal policy that was in place for more than two decades,” stated the brief filed by SCO.
And in the instances where the district collected the information and has the consent of the parents to release, the district can’t claim the information is prohibited by law from being released because it has the consent, they argue. They cite seven organizations that received information similar to its request and contend that state law requires Springfield release it to SCO.
Springfield Notes FERPA Protects Student Privacy
Attorneys for Springfield note the intent of the FERPA law is to keep student education records private and provides a way for parents and students to view their own student records and make any corrections they deem necessary. The only information that can be publicly released is directory information if the school wishes to do, but isn’t mandated by FERPA to do, they argue.
“In both Policy JO and the Consent Form, Springfield provides parents with greater confidentiality with respect to students’ educational records than they had previously possessed,” states the brief filed by Springfield’s attorneys.
Springfield argues its consent policy allows it to release the information with groups that “partner” with the district, requires the users to clearly explain its intended use of the data and how it benefits Springfield students, and gives the district the ability to track the effectiveness of the use. They counter that SCO has no relationship with the district and provided it no information on how the data was intended to be used. Moreover, the district argues that SCO also markets for public charter schools and received donations from the for-profit companies that manage the charter schools. The district suggests those companies could profit from the student information.
District attorneys also contend that the records are exempt and cite the Ohio Supreme Court’s 2012 State, ex rel. ESPN, Inc. v. The Ohio State University decision where the Court found personally-identifiable information without consent for release is exempt from the public records act. While FERPA allows Springfield to designate and release information, they argue that SCO has provided no legal support that requires a district to designate the information and release it through a public records request. Because SCO has no right to claim the information under the public records act, they conclude that SCO does not have the right to seek a writ of mandamus by claiming a violation of FERPA or R.C. 3319.321.
Friend-of-the-Court Brief
An amicus curiae brief supporting Springfield’s position has been submitted jointly by the Ohio School Boards Association, the Buckeye Association of School Administrators, and the Ohio Association of School Business Officials. The organizations state they represent all Ohio public school board members as well as thousands of school administrators, and they note that denying SCO’s request is important to maintain the discretion of local schools to develop public policy. They suggest SCO is wrong to conclude the collection of any information that can be directory information becomes public record.
“SCO glosses over the important distinction that the designation of directory information and subsequent provision of notice falls within a school district’s responsibilities,” the brief states.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing School Choice Ohio: David Movius, 216.348.5400
Representing the Springfield City School District: Lawrence Barbiere, 513.583.4200
Attorney Discipline
Lorain County Bar Association v. Mark R. Provenza, Case no. 2015-0060
Lorain County
The Board of Professional Conduct recommends that Lorain lawyer Mark R. Provenza be suspended from practicing law for one year, with six months stayed, for mishandling cases for two clients, not carrying professional liability insurance, and neglecting to deposit funds into his trust account as required by professional conduct rules.
Two Clients File Grievances
Robin Maxwell-Smith hired Provenza in December 2013 to handle her divorce. According to the board’s report, Maxwell-Smith paid the lawyer $300 for court costs to initiate the divorce and $500 to retain his services. Provenza didn’t deposit the money into his trust account.
The board found that Provenza never filed the divorce complaint, told Maxwell-Smith to appear in court when he hadn’t submitted any paperwork, and refused to respond to multiple calls and texts from her. He also didn’t put their fee agreement in writing and failed to inform his client that he wasn’t covered by professional liability insurance.
In March 2014, Provenza was appointed by a juvenile court to represent Susan Hughes, who had been accused of contributing to truancy. Provenza didn’t respond to Hughes’ attempts to reach him, didn’t meet with her about her case except for one five-minute discussion before a court hearing, and didn’t research her case or review her materials. The board found that Provenza failed to properly and adequately communicate with his client and neglected to diligently represent her. He also failed to tell Hughes he had no professional liability insurance.
Board Proposes Actual Suspension
The Lorain County Bar Association, which filed the charges, and Provenza agreed to certain aggravating and mitigating factors in this disciplinary case. The board, however, added another aggravating factor – a dishonest and selfish motive – for his failure to refund Maxwell-Smith’s fees. The board stated that the lawyer’s “cavalier attitude” necessitates a sanction that protects the public. It concluded a one-year suspension with six months stayed with conditions, including that he pay back $800 to Maxwell-Smith within a specific timeframe, was appropriate.
Lawyer Objects to Additional Finding, Increased Sanction
Attorneys for Provenza have filed objections to the board’s report. While they emphasize their agreement with the factual findings and recommendations made by the bar association, they contest the board’s addition of the dishonest and selfish motive aggravating factor and the elevated sanction.
They note Provenza was experiencing some personal problems, centering on his fiancée’s medical issues, at the time he took on these two cases. The situation drained him both financially and emotionally, they assert. They argue that the financial burden explains Provenza’s inability at the time to repay Maxwell-Smith’s fees and to renew his professional liability insurance. The facts don’t support an intent to defraud or a dishonest motive, they maintain, adding that the bar association recommended only a six-month fully stayed suspension without this finding. They ask the Court to accept the agreement made with the bar association for a lesser sanction.
Bar Association Agrees with Attorney
Lawyers for the bar association first point out that the professional conduct rules require attorneys to place fees not yet earned into trust accounts so the money can be returned to the client if unearned. In that regard, the bar association’s counsel finds Provenza’s personal reasons for why he couldn’t refund Maxwell-Smith unconvincing.
However, they don’t believe Provenza’s actions stemmed from a dishonest or selfish motive. If the Court agrees that the addition of this aggravating factor isn’t supported by the evidence, then the bar association maintains the original, stipulated six-month stayed suspension should be imposed.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Mark R. Provenza: Daniel Wightman, 440.930.2600
Representing the Lorain County Bar Association: Daniel Cook, 440.246.2665
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