The complaint, filed Friday, accuses the judges of violating the constitutional separation of powers and ignoring Ohio laws that Will’s office contends gives the power to run a diversion program solely to prosecutors.
“The Court’s Program encroaches on the legislative branch’s power by disregarding a law which gives a prosecutor’s office, not a court, the authority to establish a pre-trial diversion program,” Assistant County Prosecutor Elizabeth Lindberg wrote.
In a diversion program, a criminal defendant pleads guilty to the charges he faces, but the court doesn’t accept the guilty plea. Instead, the defendant is placed on probation and if he successfully completes the program the charges are dismissed, typically after one year.
According to Lindberg, since the judicial diversion program was created in April 2010, the judges have accepted 22 people into the program. Eleven of those cases have resulted in the cases being dismissed after the defendants completed the diversion program.
Among those who have seen their cases dismissed after completing the diversion program are former Lorain police Officer Corey Earl, who saw forgery and passing bad checks charges dropped, and Jenny Ocasio, a former North Ridgeville Water Department worker accused of stealing more than $9,000 from the city.
Ocasio is now seeking to have the file of her now-dismissed theft in office case sealed from public view.
Administrative Judge James Burge defended the court-run program and pointed out that despite numerous appeals on the issue, the Ohio 9th District Court of Appeals has not said the program was illegal, although he conceded it hasn’t specifically stated it was legal, either.
Burge also said that a similar program in Butler County has been upheld by a separate appeals court, but he didn’t know if it had ever been subjected to a full review by the Ohio Supreme Court.
Burge said he and his fellow county judges believe the program is legal under Ohio law.
“We believe it would be part of our plenary powers,” Burge said. “That would mean unless (the law says) you can’t do it, you can.”
But Lindberg wrote that since the appeals court hasn’t fully addressed the legality of the program in its decisions, prosecutors had little choice but to take the matter up with the Supreme Court so there could be a resolution to the long-running dispute.
“Despite repeated efforts and the expenditure of substantial resources, each time (prosecutors) challenged the Court’s Program, the Ninth District Court of Appeals has failed to make a determination as to the Program’s validity and constitutionality,” she wrote. “It has become clear that the State can only achieve legal redress through the extraordinary relief of a writ.”
Will said he delayed taking action in the hopes that the appeals court would decide the issue so the county could avoid the expense of bringing in an outside law firm to represent the judges. The prosecutor’s office typically represents the judges in legal matters.
Will said the county already has a valid diversion program, which has been run by his office since 2000. That program, prosecutors contend, is legal under Ohio law and has never been challenged.
Burge said the judges decided to create their own diversion program in part because of concerns about how prosecutors were deciding who was being admitted to Will’s program.
He said Will’s office was letting victims in cases decide whether or not someone should get diversion, which he argued means that if two people commit the same crime one could walk away with no criminal record, while the other would have a conviction.
“It’s justice pursuant to who the victim is,” Burge said. “So we didn’t like that the victim alone could control admission to their program.”
Will said victims are entitled to have a voice in how the criminal justice system deals with those who committed crimes against them. He said victims are allowed to speak at sentencing hearings, for instance.
“Yes, they have a say in it ,and I think that’s appropriate,” Will said.