Juries apply law with humanity

By Gary Abernathy - [email protected]

I had a chance to chat with Robert F. Smith, the special prosecutor in the Drew Hastings case, a few times while the jury was deliberating Wednesday. He’s a likeable guy, doing the job he was appointed to do. Prosecutors prosecute. Like his own investigator and the investigators from the sheriff’s office, he was just doing a job that was dumped in his lap by others.

After the not guilty verdicts, he said he wasn’t shocked. Neither was I, although you never know what a jury will do until it does it.

I joked with Mr. Smith once that from doing online searches, it seems like he’s the special prosecutor in every public corruption case in Ohio. He’s good at what he does, and he believes in it, as he should. I got the impression from talking with him that he had become well aware of the allegations that have long been made against Drew before he became involved, and his goal was to put on trial as much as he could to settle several simmering questions once and for all.

He and Drew sometimes chatted during breaks in the case, talking about other subjects in amiable fashion. After the verdict, Mr. Smith said that he wishes the mayor well, and it seemed to me he meant it. He was ready to move on to his next case.

Whether others are ready to move on remains to be seen. But after a police officer’s “citizen complaint” about the mayor’s residency in 2013, a civil case over a $500 refund in probate court last December, a concurrent criminal investigation culminating in Wednesday’s acquittal, sandwiched around his re-election by the people of Hillsboro in 2015, you would think that someone might call a meeting of GET DREW, INC., and say, “Maybe the problem is not him. Maybe it’s us.”

The judge in the case, Patricia Ann Cosgrove, was a delightful and sometimes humorous umpire, as she called herself, and while the jury was deliberating I made sure to tell her in front of Rocky Coss that it was nice having such a judge in Highland County. (Rocky laughed, fortunately.)

She reminded everyone at the beginning of the trial that the United States is one of the few nations left that still have jury trials, so defendants have a right to be judged by their peers, not just by a court.

The members of the jury were carefully vetted from a large pool by the judge, the prosecutor and the defense attorney. They were all satisfied with the jury. What this jury did – what I think any combination of 12 unbiased jurors would have done – was use their common sense in addition to applying the law.

Jurors are instructed that if they find certain facts to be proven beyond a reasonable doubt – on every element of the charge – they have no choice but to convict. But the reason defendants have a right to a jury trial in the U.S is so their peers can sit in judgment of them, applying their own relatability to the circumstances and facts in the case.

What would I do in that situation? How would I feel about someone else doing what the defendant is accused of doing under the circumstances? Is this something that I think rises to the level of a felony? None of those questions are part of jury instructions, but they are part of every human being’s natural thought process.

The jury did not get to decide on two of the charges, because the law took over before the charges could reach them. After the state rested its case, Judge Cosgrove granted the defense motion to dismiss one of the theft charges involving the dumpster use, along with another charge of tampering with records.

Drew’s lawyer, James Boulger of Chillicothe, has a reputation as one of the top defense attorneys in this part of Ohio. During this trial, he showed why. The two charges that were dropped were dropped because Mr. Boulger – still pouring over documents late in the evening after Tuesday’s testimony – identified a subsection line in a prosecution document that required deception as an element of one of the theft counts involving the dumpster.

But it had been demonstrated through testimony that no deception had occurred. Since the prosecution had rolled the $500 vacant property refund that was connected to the tampering charge into the separate dumpster theft charge, the judge recognized the legal validity of Mr. Boulger’s request to dismiss both the charges, based also on the fact that no proof had been offered that Drew had tampered with any records.

On the remaining charges – which included yet another theft charge regarding the dumpster use – Mr. Boulger’s closing argument showed that in order for Drew to be responsible for the rise in Rumpke bills presented by the prosecution, it would have required about 25 tons of debris – something he correctly said that no one believed (and the prosecution never tried to allege). On the residency question, his encouragement to jurors to carefully interpret the judge’s instructions on that charge also carried the day.

The residency case has always been a loser. Drew clearly owns and occupies a residence in Hillsboro, and whether he spends more time there or on his farm has never mattered, legally. That’s what always made the late-night raid at his Beech Street residence last February a travesty.

Mr. Smith acknowledged that the residency issue had never been tried in criminal court. While I respect Mr. Smith, his decision to use Drew Hastings as a test case on the subject was unfortunate for the mayor and his family. In court, watching Drew being questioned about where his clothes were kept, where his wife’s clothes were hung, where his stepdaughter kept her clothes, made you feel he should just say, “None of your business.” But, he couldn’t, and he answered the questions patiently.

Drew said later that it was “very scary” waiting on the verdict to be read. Anyone who has even been just a spectator in court when a verdict is being read understands it is a tense moment, and doubly so for the defendant. Drew’s wife, Taryn, burst into tears when the second “not guilty” verdict was read, and for the first time you could see how much tension had been building for this couple for nearly a year.

We are a nation of laws and not men, some say proudly. It is fortunate for each one of us that sometimes humanity is applied, too. The law by itself is not always interchangeable with justice. In this case, thanks to the facts that were presented, a good defense attorney, and attentive, smart jurors who applied their common sense, justice was done.

Reach Gary Abernathy at 937-393-3456 or on Twitter @abernathygary.


By Gary Abernathy

[email protected]