March 25, 2005

Judge rejects claims of man jailed under voided sex law

by Eric Resnick

Warren, Ohio--A gay man?s federal complaints against the city that imprisoned him under a nonexistent law, his former lawyer and the judge that oversaw it all were dismissed March 21, mostly on legal technicalities. The ruling allows state claims to be filed.

Keith Phillips, an openly gay man, was convicted twice of ?importuning? two years ago and served time in jail, even though the Ohio Supreme Court had unanimously struck down the law seven months earlier.

Ohio?s importuning law had made it illegal for a person to ask someone of the same sex for sex, if it would have offended them. The top court voided it in May, 2002, partly because the same act is legal for heterosexuals.

Phillips, 20 at the time, was charged with importuning in December, 2002, after an incident with a co-worker. Unaware there was no such law, he pleaded no contest and received a suspended sentence. The following spring, a second importuning case led Warren Municipal Judge Thomas P. Gysegem to send him to jail for four months.

When Phillips got out, he discovered the law didn?t exist and sued in federal court.

Northern Ohio U.S. District Judge Christopher A. Boyko dismissed Phillips? federal complaints against the city of Warren and its municipal court; State Sen. Marc E. Dann, who is the employer of Phillips? former attorney; and the Forensic Center of Northeast Ohio and its employees Linda L. Blum and Stanley J. Palumbo, who wrote a report used by the court to convict Phillips.

Phillips does not want to appeal the decision, said his attorney Randi Barnabee of Bedford. He will sue in state court.

Boyko?s decision allows state cases to go forward against Benjamin Joltin, Phillips? attorney in the second importuning trial whom he accuses of malpractice; Wayne Trimble, a figure in that case who is accused of assault and battery, and Judge Gysegem, who presided over both convictions and allegedly libeled Phillips in a local newspaper.

Boyko said neither the city of Warren nor its municipal court could be sued for their role in the matter. He dismissed the negligence and defamation complaint against the Forensic Center and psychologists Blum and Palumbo because they were paid by the court to evaluate Phillips.

?As ?arms of the court,? [they] are entitled to absolute judicial immunity,? wrote Boyko.

Boyko dismissed Dann, saying that there was no attorney-client relationship. Dann, also an attorney, employs and supervises Joltin, who represented Phillips. The malpractice claim against Joltin will go forward in state court.

Barnabee said the state complaint will likely be heard by the Trumbull County Common Pleas Court, unless she decides to have it moved because one of the defendants is a judge in that county.

Shortly after the federal suit was filed in December 2003, a visiting judge vacated Phillips?s first conviction. Phillips is seeking reversal of the second one, which led to the jail time, in the Eleventh Ohio District Court of Appeals in Warren.

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