Gary Nasal's 8 mo. "investigation" yields no indictment of Sheriff O'Leary
by Chad D. Baus
“Quis custodet ipsos custodes?”, Juvenal
Who will guard the guards themselves?
That is the question many Ohioans are likely to be asking themselves in the wake of two current events in Ohio.
Last week, Democrat Supreme Court Justice Alice Robie Resnick was arrested in Wood County for driving with a blood alcohol content 2 ½ times the legal limit. It was later revealed that despite being told by police that she was "not free to go", Resnick drove away from police, only to be stopped again and eventually arrested. A Bowling Green city prosecutor announced Thursday that Resnick, who has ruled in favor of upholding a ban on carrying a concealed firearm because it is a "public safety" issue, would not be charged with fleeing or eluding law enforcement or with disobeying an officer.
On Friday, the unequal scales of Ohio justice were used a bit farther south, in Shelby County. Ohioans For Concealed Carry has learned that a Shelby County Grand Jury was assembled on February 4 to hear from Miami County Prosecuting Attorney Gary Nasal (a Republican appointed as special prosecutor to investigate these violations last June). Nasal presented his findings concerning the actions of Shelby County Sheriff Kevin O’Leary in releasing the protected, private information of 87 concealed handgun license-holders to the Sidney Daily News (which subsequently published 85 names and addresses).
Unfortunately for the victims, their fears (which grew as month after month passed that Gary Nasal’s "investigation" was actually nothing but a white wash) appear to have been validated. The Grand Jury has failed to return an indictment.
OFCC first reported this abuse on June 9, 2004, one day after the Sheriff disclosed the names and home addresses of all persons who had obtained a CHL from his office. Shortly thereafter, OFCC was inundated with calls for justice, and OFCC was eventually contacted by nearly 15% of the 87 victims of this unlawful disclosure. These people were, in turn, referred to Attorney Ken Hanson for private representation.
On June 17, 2004, Shelby County Prosecutor Jim Stevenson agreed to obtain the appointment of a special prosecutor from Common Pleas Judge John D. Schmitt. Gary Nasal was appointed to investigate whether Sheriff O'Leary "did release or otherwise disseminate records that are confidential under Ohio Revised Code Section 2923.129(B)(1), and against the peace and dignity of the State of Ohio, a fifth degree felony." The investigation was also supposed to examine charges that O'Leary committed dereliction of duty and violated the civil rights of the 87 license-holders whose private information was disseminated. Those crimes are misdemeanors of the second and first degree, respectively.
As OFCC has documented, there is 100% proof that the violation occurred, yet the "investigation" by Gary Nasal was stalled for nearly eight months, and a Grand Jury which supposedly heard all the evidence failed to return an indictment.
In a statement on these developments, Gary Nasal stated as follows:
- "The Shelby County Grand Jury, an independant body created by law, consisting of citizen representatives of Shelby County, has examined all available evidence pertaining to the investigation of the Shelby County Sheriff's release of personal information regarding concealed carry licenses, and had deliberated thereon.
The Grand Jury, after considering such evidence as presented by the Special Prosecutor and applying the law as provided by the Court, concludes that there is no probable cause to require any person to stand trial under the Ohio Criminal Code. Since the evidence fails to establish the probability of guilt, the Grand Jury has failed to return any indictments."
OFCC has consulted with an attorney who has over three years experience presenting cases to grand juries, and who also has served as a special prosecutor in over 30 undercover criminal investigation prosecutions to review the situation. According to our consultant, "this is an easy grand jury investigation." O'Leary's letterhead is fixed atop the letters releasing the addresses (obtained from his office by public records request). Editor Billiel admitted in an editorial that he got the information from O'Leary. "Two pieces of documentary evidence, even without testimony, equals an indictment," the consultant observes.
Unfortunately for the 87 victims in this case, the Grand Jury either was never presented with this information, or received encouragement to accept O’Leary’s weak excuses rather than to view his conduct for what it was: a deliberate, and illegal, act motivated by his opposition to licensed concealed carry. There is no plausible or reasonable explanation that can explain why this Sheriff was not indicted.
Sheriff O'Leary originally protested that he simply had a lack of understanding what "county of residence" means. However, when OFCC did a search on the Ohio Revised Code, we found there is no other place where "county of residence" means "home address", despite both phrases being used repeatedly. Additionally, one of the qualifications for being a candidate Sheriff is that one's "county of residence" must be the same as the office they are seeking.
Presented with O'Leary's excuses, OFCC's consultant stated that "rarely does 'honest mistake' play a role at the charging stage. At trial or for plea, sure, maybe. But O'Leary's 'aw shucks' explanations would not cut it for a street level crack dealer he was arresting!"
OFCC has uncovered several other things in the past 8 months that would tend to negate this protestation of innocence. In fact, to date, OFCC is unaware of any apology from the Sheriff. Among the Sheriff's actions that indicate his anti-CCW bias:
agencies) were informed that home addresses could not be released.
Overall, the picture painted is of a Sheriff who is against this law and who is willing to take action to obstruct its implementation.
A second willing accomplice also remains at large - Sidney Daily News Editor Jeffrey Billel. After all, as OFCC has previously reported, the Ohio Newspaper Association, and members of Daily News-owner Brown Publishing Company's family of newspapers, had been told in emails and letters that the home addresses were off-limits, yet Editor Billel willingly aided and abetted Sheriff O'Leary in violating this law.
As we reported in December, a source who works in the courthouse told OFCC that Sheriff O'Leary had been sending his deputies over to common pleas court "trying to find out the identities of those being summoned for the grand jury." Just what is going on in Shelby County, Ohio?
This is a real crime with real victims. One named individual, a small business owner, has been confronted several times after his name appeared in the paper, and says he has suffered harassment. Another victim has received death threats in the past and now has had his home address published in the paper.
So how does one measure the quality of the special prosecutor's 8-month "investigation"? Up until last week, OFCC had not been able to locate even ONE victim who had so much as been contacted by Gary Nasal. In fact, OFCC has learned he didn't even meet with Sheriff O’Leary until early December.
All of the direct and anecdotal evidence is incredibly damning against the Sheriff's "I didn't understand" explanations, yet as far as we can tell, none of the victims were contacted until just days prior to the grand jury hearing.
Why has the charging decision been stymied? Gary Nasal’s failure in Shelby County to hold these violators accountable is just the latest evidence that the Media Access Loophole is not living up to promises made by its supporters.
After it was inserted, Ohio's citizens were assured that this provision would not be abused. Instead, certain legislators and the governor claimed that civic minded journalists would simply use this access to insure that the wrong people were not obtaining the licenses, and that information would be used to report whether people with licenses were committing crimes.
Instead, the only thing that has happened is that media outlets blindly republish the lists as a thinly-veiled intimidation tactic. OFCC has learned that over 1,300 Ohio citizens have chosen to get a Florida Concealed Carry license, which is valid in Ohio, so that they do not have to suffer the risk of criminal attack due to these "civic minded" journalists blindly publishing these gun storage shopping lists for home burglars.
The stated purpose of allowing access was to determine whether or not the law was working as intended. But when was the last time (if ever) an Ohio newspaper covered a gun crime and the reporter pointed out that the criminal DID NOT have a license? Has there been any coverage of the Jeep plant shooting or the murder of Columbus Police officer Bryan Hurst at Fifth Third Bank that indicated that the criminal strode right past the “no-guns” signs? No, this coverage isn't happening, but the lists of licensees are published on a regular basis as a "public service."
"We are calling upon the General Assembly to remove the invasive media access loophole from the law," said Jeff Garvas, President of Ohioans For Concealed Carry. "It is being used to intimidate potential CHL applicants and violate the privacy of license holders. There is no public interest being served. What the newspapers said they'd do with this access and what they're actually doing with it today has justified our organization's initial opposition to this part of the law."
"When Governor Taft insisted on inserting this loophole at the eleventh hour, the legislature claimed it was justified, in part, by adding penalties for violating this same section," said attorney Ken Hanson. "My clients have asked the responsible authorities to enforce these protections, and they have failed to do so.”
Miami County Prosecuting Attorney Gary Nasal can be contacted at (937) 440-5960, or emailed at [email protected].
Rep. James Aslanides (R-Coshocton), the concealed carry bill's original sponsor, said in conference committee and during a short floor speech in January that he would lead an effort to roll back the media access if the "privilege" is abused.
"If they abuse the privilege, we can cause them to lose the privilege," he declared, pointing out that the Pennsylvania Legislature struck a similar provision after a newspaper published a list of permit holders.
- Aslanides can be reached at:
Telephone: (614) 644-6014
Fax: (614) 644-9494
Email Address: [email protected]
Sen. Steve Austria seconded this warning, adding that publishing the names of license-holders would be the exact kind of abuse they're referring to, since publishing these names would threaten the safety of the very men and women who have chosen to bear arms for self-defense.
- Austria can be reached at:
"I don't think we need to worry about journalists doing their job," state Sen. Marc Dann, a Youngstown area Democrat, told Mr. Aslanides.
- Dann can be reached at:
Rep. Aslanides has already expressed interest in modifying the law to correct this abuse. Sens. Austria and Dann have not, as far as we are aware, provided public comment in the wake of these newspapers' actions. All three men were reelected in November 2004.