Sunday, October 25, 2009

Appeals Court Resinstates Lawsuit Dismissed By Judge McGinty That Black Journalist Filed Alleging Malicious Prosecution For Her Articles

Cuyahoga County Court Of Common Pleas Judge Timothy McGinty
Journalist Kathy Wray Coleman

Posted Sunday, October 25, 2009
(National and Cleveland, Ohio Area News)

Cleveland, Oh. journalist Kathy Wray Coleman will get her day in court on a claim that she was maliciously prosecuted in the Shaker Heights, Oh. Municipal Court by the city of Beachwood Oh. and subjected to intentional infliction of emotional distress in retaliation for her community activism and her writings on alleged housing discrimination against Blacks in Shaker Heights in the Call and Post Newspaper, a Cleveland weekly that targets the Black community.

The decision, issued last Thursday by a three-judge panel from the Ohio Eighth District Court of Appeals that consisted of judges Christine McMonagle, Patricia Ann Blackmon and Melody Stewart, reinstated the lawsuit relative to malicious prosecution and intentional infliction of emotional distress claims against businesswoman Myrna R. Gill. In addition to Gill the suit names the cities of Beachwood and Shaker Heights, Beachwood and Shaker Heights Law Director Margaret Anne Cannon, Beachwood Prosecutor Thomas Greve and Beachwood Detective Allan Baumgartner. Cuyahoga County Court of Common Pleas Judge Timothy McGinty, a former assistant county prosecutor, had dismissed the entire lawsuit last year seeking to nullify Coleman's claims against all of the defendants including Gill.

“The decision by the predominantly Black and all female panel of scholarly jurists lends credence to our claim that Blacks, journalists and others are maliciously prosecuted in the Shaker Heights Municipal Court,” said Coleman. “It does not matter that Gill is the one they kept in the suit while others were dismissed that should not have been because we still believe that they all worked in concert with one another and we intend to hold her accountable for potential compensatory damages and potential punitive damages if we prevail on the claim before a jury given that she is insured and represented in this litigation by lawyers for her insurance carrier.”

Coleman said the case is not really about money, though money damages often deter bad behavior in addition to making the aggrieved person whole, and it sends the message that those found guilty of violating a person's constitutional and statutory rights must face repercussions. She said that she and her new attorney in the case that she hired yesterday have not decided if either the attorney or Coleman will file an affidavit of prejudice to seek McGinty's removal from the case once it is returned to the Common Pleas Court level for further review and a potential trial by jury.

“I was mistreated by Judge McGinty both in and out of his chambers and he is a former assistant county prosecutor who claims to be about judicial reform against his colleagues while he simultaneously harasses Black female journalists and freely issues unfair and illegal rulings that are subsequently overturned by the Ohio Eighth District Court of Appeals,” said Coleman. “I believe that he is both a hypocrite and a bully with a potential Napoleon complex and would respectfully call for his voluntary resignation from the bench as soon as possible.”

A journalist of 15 years, Coleman, who is Black, filed the suit in the Cuyahoga County Court of Common Pleas after a Shaker Heights Municipal Court jury, on Oct 28, 2005, found her not guilty of a misdemeanor charge of telecommunications harassment brought by the city of Beachwood, which is under the umbrella of the Shaker Heights Municipal Court. The just of the lawsuit is that the prosecution was malicious and without probable cause and that the defendants abused the criminal process to attempt to get a conviction against Coleman for her writings and community activism. Accordingly, said Coleman in the lawsuit, she was subjected to undue emotional distress, malicious prosecution and abuse of process, among other claims.

Gill, who is White, is alleged to have levied the prosecution by filing a false police report, affidavit, and a complaint alleging that Coleman had called her business three times in November of 2003 when she allegedly told her not to and after they had severed business related ties. She also maintained in the public court documents that she had not seen Coleman since October 2003, a claim that proved false at trial and that Coleman brands along with Gill's other shenanigans “an avalanche of lies.” At the criminal trial in Shaker Heights in October of 2005 Coleman's then paid lawyer, Terry Gilbert, made a fool of Gill on the stand introducing document after document written by Gill herself that showed that she was lying and that she and Coleman had talked by telephone and met for business related meetings at least 10 times in 2004. Two weeks before trial Coleman filed a police report alleging falsification relative to Gill and attached copies of documents written by Gill that document business meetings between them as late as 2004, but prosecutors ignored it and proceeded to trial anyway, the lawsuit contends. Gill, a resident of Beachwood, was later investigated criminally by a special prosecutor selected by Cannon and Beachwood officials on the falsification claim and found to have lied in her police report and at trial, though Beachwood refused to prosecute her.

“It was all a set up where before trial they offered to dismiss the criminal charge if I agreed not to sue and to stop writing articles for the Call and Post on alleged race discrimination and other matters,” said Coleman. "They had proof before trial that Gill had lied and nothing in writing showing she allegedly told me not to call where she urged me to call for documents I was respectfully seeking in an unrelated civil matter involving Chase Manhattan Mortgage Company.”

Ironically, Gill did not claim that Coleman was unprofessional or that she threatened her by telephone where she said only that Coleman had allegedly called when she told her not to, which is all that is required to substantiate a criminal charge of telecommunications harassment if, unlike the case with Gill, the complainant or the prosecution can prove through legitimate writings like certified mail, valid recordings, or circumstantial evidence at trial that the person was told not to call and did so anyway. It is, however, difficult to find a single case in Ohio of a prosecution of this nature where most cases involve repeated phone calls and threats. At the criminal trial in Shaker Heights Municipal Court in 2005 prosecutors played an audio tape crafted by Gill where Coleman politely asks Gill for the documents that she was allegedly withholding that were needed for discovery relative to the Chase Manhattan Mortgage Company civil litigation. The following day the diverse Shaker Heights jury issued a not guilty verdict in Coleman's favor on the telecommunications charge after deliberating for less than an hour with at least one female juror unknown to Coleman hugging her after trial for her courage and tenacity.

In the unanimous decision issued by the appellate court last week on the lawsuit against Gill and others, and authored by Stewart, the panel said that Coleman's lawsuit claims that Gill intentionally lied to police, filed a false police report and promised to make public personal information she has on Coleman were enough to reinstate McGinty's dismissal of Coleman's civil claims against Gill.

“These allegations, accepted as true for this analysis, are sufficient to demonstrate the existence of genuine issues of material fact relating to appellant's claim of emotional distress,” Stewart wrote. “Appellant's [Coleman's] third assignment of error is sustained as to the malicious prosecution and intentional infliction of emotional distress, and overruled as to the abuse of process claim.”

At oral argument on the appeal before the three-judge appellate panel held in June where Coleman, who represented herself, urged the judges to reinstate the lawsuit in accordance with applicable law. Blackmon questioned lawyers for Gill, the city of Beachwood and for the other remaining defendants on how Coleman could have legally been prosecuted for merely calling somebody three times in the month of November as the complaint reads. Coleman had denied on the stand during her testimony at the criminal trial in 2005 that she even called Gill at the dates and times Gill claimed, and prosecutors withdrew the audio tape from evidence after playing it for the jury, a measure that Coleman says was prejudicial since the authenticity of it had come into question at Coleman's insistence to her attorney at trial.

“People call here five times a day,” said Blackmon, a seasoned appellate court judge and the first Black female, along with retired Judge Sara J. Harper, to be elected to a state appellate court in Ohio.

In upholding McGinty's dismissal of the city of Beachwood, Cannon, Baumgartner and Greve from the suit the appellate panel said they had immunity, a claim that Coleman disputed in her appellate brief and at oral argument before the panel claiming, among other issues, that the prosecution was pursued with documented malice aforethought, written knowledge before trial that Gill had lied, a lack of probable cause, and the abuse of process designed to silence free speech of a Black journalist on issues of public concern.

Members of Cleveland area grassroots organizations such as The Carl Stokes Brigade, Black on Black Crime and The People's Forum, some of whom attended the oral argument session, applauded the court's decision to reinstate Coleman's lawsuit.

“I knew that Judge Blackmon would be fair,” said Ada Averyhart, membership chairperson for the Brigade.

Coleman said that she hopes that McGinty will voluntarily withdraw from the case so that a fair judge can hear it. Last year the journalist was dragged to the county jail, allegedly harassed over her writings, held naked, given a knockout drug, supervised by a disgruntled male employee, and released four days later without charges. Accordingly, she was forced to dismiss Shaker Heights from the lawsuit due to missing a deadline while incarcerated. In May it was revealed by Common Pleas Court floating staff attorney Erin O'Malley that McGinty, through his staff attorney, set up the arrest even though he had no criminal dealings with Coleman who has no criminal record. Cuyahoga Common Pleas Judge John O'Donnell also helped by luring Coleman to the Justice Center on August 7, 2008 for a hearing in a civil matter involving Coleman and Chase Manhattan Mortgage Company, court documents reveal. Coleman says that she was attacked in the hallway upon leaving and arrested, and that upon entering the county jail O'Donnell's supposed relative, Kevin O'Donnell, a booking sergeant, greeted her with “We made special arrangements to have you here and I am a relative of Judge O'Donnell.” Coleman also has a pending federal district court lawsuit, filed on her behalf in August of this year by Strongsville, Oh. attorney Wayne Kerek, as to last year's arrest and jailing in the county without charges. That suit, which is in the beginning stages, names among others Kevin O'Donnell, former Cuyahoga County Sheriff Gerald McFaul, The Cleveland Clinic, Cleveland area attorney Matthew Fitzsimmons, the Cuyahoga County Board of Commissioners, Jail Warden Kevin McDonough, and retired Lorain, Oh. Municipal Court Judge Gustalo Nunez. Interestingly, neither McGinty nor Judge O'Donnell has been sued by Coleman.

Coleman said she has not decided whether she will ask the Ohio Supreme Court to consider accepting jurisdiction to hear the parts of the case that were not in her favor, though emphasizing her gratitude for what was issued by the three-judge appellate court panel last week as to the Shaker Heights malicious prosecution civil litigation.

“We are again pleased with the reinstatement of the lawsuit, though there are some issues of potential error where the appellate court upheld the dismissal of my claim of abuse of process and failed to reverse Judge McGinty's order to dismiss the true culprits from the lawsuit via summary judgment whom we believe are at fault and who are powerful Shaker Heights public officials,” said Coleman. “With advice from my dad and others who care about me I have come to understand that a win such as this is powerful since it brings credibility to our cause of seeking equal opportunity and equal justice in this community for all people. I also know that Blacks rarely win on everything in our courts even when required by law and regardless of the level of mistreatment and the merits of the cause."

Coleman said she only represented herself in the lawsuit because attorneys that she could afford to pay refused to take on Shaker Heights officials like Cannon, who is also an attorney in private practice who represented Cleveland City Council President Martin Sweeney in a case of alleged sexual harassment lodged by a former Cleveland Clerk of Council. She said also that she hopes that the new attorney in the matter will temper the unfairness at the Common Pleas Court level that she describes as “routine against little people by most of the 34 judges in the general division of the Cuyahoga County Court of Common Pleas, only three of whom are Black." She also reminds the Black community that all is not well as to the manner that Blacks are treated by certain officials of the city of Cleveland and its outer suburbs, and the courts at all levels in Cuyahoga County.

“I now have an attorney with respect to this Shaker Heights case that was just reinstated on appeal and it is important to emphasize that when Black women are victimized we rarely get support while women with characteristics unlike us sometimes do,” she said. “We are instead subjected to costly appeals and malicious and retaliatory prosecutions by the predominantly Black city of Cleveland in efforts by Cleveland Law Director Robert Triozzi and others to cover up racism and malfeasance by Cleveland itself and entities like the great and diverse city of Shaker Heights, Oh., the overtly racist city of Lyndhurst, Oh., and the outwardly corrupt Lyndhurst Municipal Court.”

Coleman says also that a problem with criminal prosecutions is that people like Cannon wear many hats such as law director and an attorney in private practice that represents the city of Cleveland and the Cleveland Board of Education in sexual harassment cases and Civil Rights litigation brought by Blacks and others.

“This type of set up puts Civil Rights advocates at risk where they can be railroaded with malicious prosecutions by the attorneys that serve as law directors and prosecutors by morning and represent entities that discriminate against Blacks in employment in the afternoons and evenings,” said Coleman. “We also take issue with assistant county prosecutors and law directors like Triozzi initiating bogus criminal charges on behalf of municipalities or the state of Ohio against Black journalists and others and then representing judges like Cleveland Municipal Court Judge Kathleen Ann Keough who are sued for alleged prejudice and the alleged refusal to follow the law in the criminal proceedings at issue. Simply put judicial reform is sorely needed in Cuyahoga County in particular and in the state of Ohio in general."