Kimball Perry

kperry@enquirer.com

A Hamilton County theft case involving a man who stuffed $200 worth of/in candy down his pants grew into a heated legal battle over a search warrant.

A Hamilton County theft case involving a man who stuffed $200 worth of candy in his pants erupted into a heated legal battle that has left defense attorneys still simmering.

On one side are defense attorneys, including the Public Defenders office, who insist Cincinnati Prosecutor Charlie Rubenstein improperly won a warrant to search the Public Defenders office for evidence in the case involving candy thief Terrance Jones, 43.

"We're being punished for doing our work," Public Defender Ray Faller said.

On the other is Rubenstein, who insists Scott Nazzarine, the public defense attorney representing Jones, improperly withheld evidence, forcing Rubenstein to get the search warrant.

"You can't take evidence and hide it," Rubenstein said. His office prosecutes misdemeanors in Cincinnati.

In between is Municipal Court Judge Lisa Allen, a former co-worker of Rubenstein's from when she worked for the Cincinnati Solicitor's office who signed the warrant approving the search – even though she wasn't the judge presiding over Jones' case.

At issue are the legal rights of attorneys and their clients and which side owns what evidence in a trial. It's raised allegations of law enforcement officials' trampling the rights of others to make up for not doing their jobs. And it's important because it could encroach on the rights of the accused – that could be you, a friend or relative – to defend against criminal allegations.

It started in the early morning hours of Feb. 7, when Jones was accused of stuffing candy down his pants at a convenience store. The officers who arrested Jones didn't get a copy of the store's video of the incident, but an investigator for the public defender did. After that, the store manager erased it from the store's video system.

Thus, the alleged thief's attorney had the only copy of what might have been a key piece of evidence for the prosecution. And Rubenstein wanted it. After meeting with Faller, Nazzarine and Richard Bernat, the municipal court judge assigned to the case, Faller refused to turn it over.

Rubenstein argued that the public defender improperly allowed an investigator to deliver a subpoena for the video to the store manager. Only attorneys, police or others legally designated as special process servers can deliver such subpoenas.

That, Faller suggested, was an excuse for Rubenstein to get the video improperly.

"Why didn't cops get the video right away? Cameras aren't new," Faller said. "They never bothered to look for it."

Rubenstein didn't ask the judge presiding over the case for the search warrant. Instead, he took it to Allen, who signed it. That gave the prosecutor the right to search for the video – and potentially every piece of paper on both floors of the public defender's office.

"That's just as bad as the public defender getting a search warrant to search the prosecutor's office," Amy Williams South,president of the Greater Cincinnati Criminal Defense Lawyers Association, said. "It does set a bad precedent."

Allen said what she did was proper. "This was, I think, a specific circumstance from what I can tell," Allen said.

That attitude, though, shows why issuing that search warrant should be questioned, Northern Kentucky University's Chase College of Law professor David Singleton said.

"This was not a race to get evidence," said Singleton, who's also executive director of Ohio Justice & Policy Center, a Cincinnati public-interest law firm. "The prosecutor sat back, didn't go get the (video) like he could have. When he got around to it, it was destroyed."

Defense attorneys take oaths to ensure they don't share information their clients provide them confidentially – and violating that oath could get them disbarred. They also shouldn't be ordered by a judge to provide evidence that could convict their clients, he added. Those charged with crimes have a constitutional right not to incriminate themselves.

"Rules only require the defense to turn over evidence it intends to introduce at trial," Singleton noted. "If you don't plan on using something – as you shouldn't with material that incriminates your client – then there is no duty to turn it over. People may not like it, but those are the rules of our adversarial (legal) system."

"Do we have to become a witness against our client because (police and prosecutors) didn't do their job?" Faller asked. "It's intimidating to lawyers who are trying to do defense work."

Jones' case ended when he pleaded guilty May 7 and was sentenced to the 64 days in jail he'd already served. That plea, though, didn't end the harsh feelings about the search warrant that Rubenstein never served and tore up after the guilty plea.

"They can be angry about it if they want," Rubenstein said, adding he did nothing wrong. "Absolutely not."

It's not about anger, ego or winning, Singleton said. It's about following rules to protect the legal system.

"Defense attorneys can't do their jobs, he said, "unless they are able to freely investigate the case without concern that they may have to later throw their client under the bus." ⬛