Ohio county drops charges in rape flier case

OXFORD, Ohio -- A former student at Miami University in Oxford has escaped criminal charges -- despite once pleading guilty -- in a case that drew national outrage over a flier posted at the school about how to get away with raping female students.

After the student pleaded guilty to disorderly conduct, a Butler County judge sealed records in the case, keeping the student's name secret. The Butler County prosecutor at the time issued a news release that is still posted on his website saying the case concluded with "the principal author/offender entering a plea of guilty to disorderly conduct. His acceptance of responsibility is noteworthy …"

But after The Cincinnati Enquirer challenged the judge's move to seal records in the case, the student was allowed to withdraw his plea and Prosecutor Michael Gmoser asked to drop the charges. That allowed Judge Rob Lyons to correct a mistake he made sealing the case the first time. He sealed it again, something he said he routinely does for students.

A local legal expert said sealing of cases shouldn't be done willy-nilly.

"Sealing a case must be done in accordance with the statute and requires that the court balance the legitimate interests of the government in maintaining a public record of a conviction versus the applicant's interest in privacy," said Christo Lassiter, a professor at the University of Cincinnati College of Law.

In behind-the-scenes legal wrangling spurred by The Enquirer's suit over improperly sealing the case, Lyons allowed the student to withdraw his plea in a hearing on Dec. 13.

Butler County prosecutors then decided against pursuing the case, and Lyons said he dismissed the charge. Lyons then sealed the criminal case a second time at the request of the student's defense attorney, Dennis Deters.

The second sealing was meant to correct the mistake Lyons made earlier by sealing it in November under the wrong state statute, Lyons said. That mistake was among several violations The Enquirer alleged in its challenge to sealing the case. The Enquirer asked the Ohio Supreme Court to order Lyons to rescind his sealing order and open the file. The case is pending.

The Enquirer sued after the student initially pleaded guilty to misdemeanor disorderly conduct and Lyons sealed all court documents on Nov. 7.

The Enquirer also contended that Lyons could not issue a blanket order sealing every document in the case, that he didn't hold a required hearing the first time around, and that he failed to consider any less-restrictive means of limiting public access to the records, which is required by the Ohio Supreme Court.

"Safety for all and fair justice for suspects are among our most important expectations of government. In this case -- a situation in which someone encouraged the heinous crime of rape -- all of the handling of the only suspect happened in secret, including a decision to no longer prosecute," said Enquirer Editor and Vice President Carolyn Washburn.

"That does not make the community feel safe. And it does not allow the community to watch our elected judges and prosecutors to ensure justice was appropriately handled."

Lyons wouldn't say whether he or prosecutors came up with the idea to hold the second hearing.

An assistant for Gmoser is representing Lyons in the Enquirer suit.

Lyons said the charge was "insignificant" even though the behavior behind it was "offensive." Sealing the case the first time around was nothing out of the ordinary, he said.

Lyons said he seals cases routinely in his court, where Miami University students are often on the docket.

"If you went to any college town, the number of sealings is very high because we have such a high degree of students that get convictions. You've got kids with indiscretions that want their records sealed before they start applying for graduate school or go to the job market. Literally every week I have a stack of sealing entries," said Lyons, whose private law firm advertises that it can help seal criminal records.

Lyons has asked the Ohio Supreme Court to dismiss The Enquirer's suit, saying he's fixed the initial problem and the issue is moot.

Jack Greiner, who represents The Enquirer on First Amendment issues, noted that the student was prosecuted as an adult and the name should be public.

"It goes to the heart of the public's right to know. The public is denied the right to observe the proceeding," Greiner said.

"The judge's after-the-fact effort to rewrite history by allowing this individual to withdraw his guilty plea for no reason other than to allow the judge to cover up his initial illegal sealing order is appalling. It is why people become cynical about the system," Greiner said.