December 16, 2005

Man jailed for breaking a nonexistent law is cleared

by Eric Resnick

Warren, Ohio--A gay man who spent four months in jail for breaking a nonexistent anti-gay sex law has had his name cleared by an appeals court.

Keith Phillips? conviction of ?importuning? was overturned by the Eleventh District Court of Appeals in a unanimous decision December 12.

?In a criminal case, due process requires that the conduct underlying a finding of guilt actually be a crime,? Judge Cynthia W. Rice wrote for the court?s three-page opinion. ?Here, it was not.?

Judges William O?Neill and Diane Grendell agreed, reversing the 2003 Warren Municipal Court finding that sent Phillips, then 19, to jail.

The city of Warren had prosecuted Phillips for importuning--asking someone of the same sex for sex, if the person asked was offended--seven months after it was declared unconstitutional by the Ohio Supreme Court.

The decision ?gives the green light? for Phillips to sue the city of Warren, said his attorney Randi Barnabee of Bedford, along with his former attorney Ben Joltin of Youngstown, Municipal Judge Thomas P. Gysegem and Wayne Trimble of Warren.

Phillips will sue the city for wrongful imprisonment in the Ohio Court of Claims. Gysegem will be sued in common pleas court for defamation by slander, Joltin for malpractice and Trimble for assault and battery, she said.

Phillips was convicted of the nonexistent law twice, the first stemming from a co-worker?s complaint.

Public records and later court filings show that Gysegem and Warren assistant prosecutor Traci Rose had been notified that the law had been voided, but Phillips was prosecuted anyway.

Rose and Warren Law Director Greg Hicks did not return numerous calls for comment.

Phillips, at the time, did not know that the law was gone. He went to his arraignment and pleaded ?no contest? to the charge. Gysegem sentenced him to five years probation, sex offender courses, monitoring of his computer, a six-month suspended jail sentence, and a $600 fine.

Five months later, Detective Sgt. Daniel Hudak arrested Phillips at work and charged him with felony importuning under another law, still in effect, that deals with juveniles. A 14-year-old had complained that a man in a passing car had propositioned him for sex.

The boy?s descriptions did not match Phillips or his car, and Phillips had proof he was at work at the time. But Joltin talked him into a plea bargain: Plead ?no contest? to a lesser charge--under the same nonexistent gay-only law as the first time--in exchange for four months in jail and no probation violation from the first conviction.

Rose and Gysegem were the prosecutor and judge that time, also.

When Phillips got out of jail in August 2003 and learned that the law he was convicted of breaking twice did not exist, he hired Barnabee, who immediately filed an $11 million federal civil rights lawsuit against Gysegem, Joltin, the city, Trimble and others.

That suit was dismissed in March of 2005 by Judge Christopher A. Boyko, who felt that Phillips had a claim, but that it was better suited to state courts.

But the federal suit caused Warren to bring in a visiting judge who vacated the first conviction in December 2003.

Barnabee chose to appeal the second conviction to the Eleventh District instead of asking for it to be vacated because she feared the city would reinstate the felony charge and force a new trial, in an attempt to create a defense for itself in the federal suit.

The three judges heard the appeal September 23. The city filed no briefs in opposition and did not appear in court.

As a judge, Gysegem is immune from any suit Phillips might bring for allowing him to be wrongly prosecuted. But Phillips is suing him for remarks he made to a newspaper.

In a story about the federal suit, the Warren Tribune Chronicle asked Gysegem about convicting Phillips under a nonexistent law.

?He has a habit of pulling down his pants around young boys, and as far as I?m concerned, that?s still illegal in the state of Ohio,? Gysegem told the paper.

Trimble is the stepfather of the boy who accused Phillips of propositioning him. According to Phillips, Trimble chased him in his car until he cornered him in a parking lot, then opened the car door, punched Phillips in the head, and took the keys out of the ignition.

Once on the scene, Warren police refused to take Phillips? statement.

Phillips said he is still angry, but no longer bitter about what happened.

?Now they know they did wrong,? said Phillips.

?I spent four months in a place you can only describe as a real-life version of hell,? said Phillips, ?sleeping on the floor next to people accused of murder and raping children and afraid to use the bathroom or shower.?

?I lost 120 days of my life due to the ignorance of some people,? said Phillips, ?but this time justice prevailed. Things went the right way.?

Phillips says he hopes that during the upcoming suits he gets answers as to why Rose, Gysegem, and the others did what they did to him while knowing that the law had been struck.

?It?s important to me that they also hold themselves responsible,? Phillips concluded.

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