While prosecutorial misconduct is widely reported, disciplinary sanctions for such misconduct are rare. On Tuesday, however, the Ohio Supreme Court took a fairly unusual step in
suspending the law license of a former Ohio prosecutor for one year due to misconduct. The court announced the decision almost five years after Jason Phillabaum, former Butler County assistant prosecutor, added criminal charges to an indictment—despite the fact that said charges had not been presented to a grand jury. According to the
Cincinnati Enquirer:
In December 2010, assistant prosecutor Josh Muennich presented evidence against [the defendant] to the Butler County grand jury which voted to indict [him] for felonious assault and aggravated robbery. Phillabaum reviewed the indictment and noted it didn’t contain a charge accusing [the defendant] of using a gun during the assault and robbery.
Phillabaum, the Disciplinary Counsel noted, told a legal assistant to add the gun charge. She said no evidence was presented to the grand jury about a gun charge. Phillabaum told her to add it anyway.
When Muennich refused to sign it, Phillabaum went ahead and signed it himself.
After discovery of Phillabaum's misconduct, charges against the defendant were dismissed. However, they were later replaced by another indictment—this time containing gun charges—and the defendant was convicted and sent to prison for 24 years.
This is just one of the allegations of prosecutorial misconduct against Phillabaum. Another clerk stated that virtually the exact same thing happened in another case—Phillabaum demanded that gun charges be added to an indictment, despite the fact that the grand jury had not seen related evidence.
In another example of severe misconduct, Phillabaum was accused of failing to disclose evidence in a case where a Miami University student was charged with "gross sexual imposition for inappropriately touching a female student." Phillabaum withheld the alleged victim's handwritten statement to police. See more below.
According to the Enquirer:
The woman's statement to police indicated the two were consensually kissing before the touching incident occurred. Yet, the woman testified that she didn't remember what happened that night because she was too intoxicated.
A jury convicted [the defendant] of the felony and he was sentenced to one year in prison.
The guilty verdict was later thrown out due to prosecutorial misconduct.
Phillabaum did face professional and criminal sanctions for his actions. He was fired from his role as assistant prosecutor—an unusual twist in a story such as this one, since in many other places, including California's Kern County, prosecutors keep their jobs even after instances of egregious misconduct.
He was also indicted on both felony and misdemeanor charges, including "dereliction of duty, tampering with records, interference with civil rights and using a sham legal process." He pled guilty to dereliction of duty, a misdemeanor charge, and was sentenced to 90 days suspended jail time, provided he complete a year of community control and probation. And, last July, the state's disciplinary board determined that Phillabaum acted in violation of four professional conduct rules.
Phillabaum had been working in private practice at his firm, Jason Phillabaum & Associates, before the state Supreme Court's year-long suspension.