Jim Provance’s article on the Coingate book, (Jim Provance, “Author argues Tom Noe ‘political prisoner’ in Coingate,” The Blade, December 24, 2017, http://www.toledoblade.com/Books/2017/12/24/Author-argues-Tom-Noe-Political-prisoner-in-Coingate.html )
is thoughtful and balanced. From long experience, I respect that the author had
limited space, so I won’t complain that he didn’t cover more topics or press
those interviewed at greater length. Indeed, with the limitation of space in
mind, it’s remarkable that he was able to cover as much as he did in a coherent
manner.
But a blog allows an
author an essentially unlimited number of words (not necessarily a good thing)
so I’ll use my first post to offer contrasting comments to some of those who
were quoted and to mention some important topics that weren’t covered.
We’ll start with the interviews.
The article quotes Prosecutor Bates as saying “’What should
I have done when [Noe] was a big political fund-raiser?’ she asked. ‘You could
make the argument that it would be better for the Democrat to do it so there
could be no claims of sweetheart deals.’”
Bates’ comment is artful. The book doesn’t in any way argue
that she should have recused herself because she was a Democrat. Instead it
proposes that her recusal was necessary because she had multiple personal
conflicts: she was an elected
officeholder in an intensely partisan environment with Noe on the other side;
her immediate family had very close ties to the Blade; which was relentlessly attacking Noe; and Noe had actively
worked against her husband in elections. By suggesting that the book targets
her because she is a Democrat, Bates evidently hopes to distract attention from
these very important problems. In fact, as made clear in the book, a prosecutor
in another county, whether a Democrat or a Republican, would have been far
preferable to someone like Bates who was so personally vulnerable to bias.
Moreover, as also emphasized in numerous sections of the text, many Republicans
were also out to get Noe, so political affiliation alone wasn’t really
relevant.
Finally, Mrs. Bates could have argued for another option that would have distanced Noe's case from a biased environment -- federal court. Other Coingate-related cases were sent to federal courts and the Noe case certainly met all the criteria.
Finally, Mrs. Bates could have argued for another option that would have distanced Noe's case from a biased environment -- federal court. Other Coingate-related cases were sent to federal courts and the Noe case certainly met all the criteria.
Another part of this article quotes John Weglian, who led
the prosecution’s case at trial, as saying “…the author apparently believed
everything Noe told him.”
This is an apparent reference to the book’s argument that
the type of accounting Noe used was intended to hide his borrowing from the
OBWC in the short term but could not have protected him from having to repay in
the long term. In other words, this is an argument against “intent” to steal,
which is crucial to prove theft. In fact, as described in the book and on the
book’s website, I didn’t get this argument from Noe. I didn’t ask him about these issues until I
had read and analyzed most all of the relevant material. In the few early and
brief conversations on the subject, Noe simply emphasized that he always
intended to repay -- as did his former colleague Tim LaPointe while testifying
for the prosecution. In fact, Noe never made the accounting argument to me.
Instead, when I described my conclusion, he simply agreed. To him, the fact
that the accounting clearly and explicitly showed his debts was so obvious that
he’d never attempted to make the point.
Weglian’s comment that the OBWC would have cut Noe off if
they’d learned of his borrowing is probably correct and isn’t disputed in the
book. What’s important, though, is that while part of the accounting was misleading
in the short term, Noe made no effort to obscure the fact of his ultimate debt.
Finally, with respect to those interviewed, the comments of
former Franklin County Prosecutor Ron O’Brien are especially interesting: “’I thought that the use of the Noe task
force with Tom Charles, Julie, and the federal prosecutor — to this minute,
with the exception of this guy — insulated it from charges of political
favoritism or persecution. It [political favoritism] just didn’t happen,’” he
said.
O’Brien’s reaction brings up one of the key points of the
book – unconscious bias. Thus, I have no doubt that O’Brien believes what he
said to the Blade last year and
believes that his role at the time wasn’t at all partisan. But O’Brien wasn’t a
disinterested actor, even if he truly believes he was. O’Brien had faced heavy
criticism from Democrats and the press for light punishments given to people
associated with Noe or with the statehouse scandal Noe’s problems generated –
all of them fellow Republicans. As an elected officeholder, O’Brien had a
strong incentive to offset these attacks by being tough on Noe – the more so
since Noe had been written off by the Republicans and had become a serious
impediment to their hopes to retain key statewide offices.
In addition to commenting on these interviews, there are
four areas that I wish Mr. Provance had had the space to mention: the unnecessary raid on Noe’s business; the
distorted audit; the psychology of bias; and the missing records.
Research on the
psychology of unconscious bias in legal processes clearly and unambiguously
shows that, as just mentioned in the case of Prosecutor O’Brien, people can
hold and act on strong biases even though they think they aren’t biased and are
being fair. The only reasonable solution is to prevent actors in the legal
process from being exposed to information or pressures that would cause them to
act in a biased way. Applying the research in psychology to the facts of Noe’s
prosecution and trial suggests a high probability that bias against the defendant
affected the prosecutors, the judge, and the jury. This is inconsistent with
American expectations of fairness under the law.
It’s disturbing that Judge Osowik doesn’t know about the
core issues in unconscious bias even a dozen years later. His comment to the Blade, that Noe got “as fair a jury as
you could get,” is simply wrong.
The search warrant
and the subsequent raid on Noe’s business were clearly done for public
relations purposes – most specifically to please the Blade. The prosecutors secured nothing in the raid they didn’t
already have a legal agreement to secure, and the delay of a few days in
executing their agreement with Noe’s lawyers were reasonable, trivial, and more
the fault of the prosecution than of the defense. Moreover, as emphasized by
Judge Osowik, the search warrant application bolstered its case with statements
that were “recklessly false.” The consequences of this PR stunt weren’t
trivial: 1) the local jury pool was
strongly biased against Noe; 2) Noe lost his main source of income and was
therefore limited in his ability to defend himself; and 3) a number of innocent
people working at Noe’s business lost their jobs.
In addition, court records and other credible reports indicate that the seizure strategy
allowed the state to simply confiscate coins and collectibles owned by
individuals such as friends and family members who authorities thought might be
somehow working in concert with Noe. Despite the absence of any proof of
culpability, these assets have never been returned.
The audit of Noe
and the coin funds was distorted to focus exclusively on one aspect of Noe’s
business in Ohio -- to the exclusion of other parts of the coin funds – even
though the prosecution had made the argument that the out-of-state
entities were under Ohio jurisdiction. Further, activities that appear to have
been very similar to Noe’s were neither mentioned nor prosecuted. The distorted
audit and limited prosecutorial focus seem to have been part of an effort to
make Noe a uniquely culpable actor and therefore subject to greater punishment.
The decision to
destroy records suggests that the leading actors in the State Task Force,
far from being proud of their work, wanted to hide it from public view –
forever. This egregious action, if not actually contrary to open records law,
is obviously diametrically opposed to the spirit of the law. Investigation of
the destruction of information is needed both for the integrity of Ohio’s
public records laws and to understand the motives of those who led the
prosecution of Noe.
-Garrison Walters, January 24, 2018