September 24, 1999
Appeal puts Neff case back in county's court
By Jefferson Wolfe
Staff Writer
Nine months after an appeal was filed in the criminal trial of the sheriff and two employees, all parties are right back where they started.
Sheriff H. Weldin Neff is charged with seven counts of intimidation and three counts of theft in office. Administrative Assistant Barb Gracemyer is charged with one count of each. Lt. James Browning is charged with one count of intimidation.
The Third District Court of Appeals in Lima ruled Judge Steve Yarbrough erred in his decision not to force a witness to testify in the trial. With the visiting judge's decision reversed, the trial will continue from the point of the appeal, more than nine months after the trial was stopped.
"I'm just glad the decision came down," said attorney Dean Henry, who represents Neff and Gracemyer. "I think the length of time ... has clearly called into question my client's ability to get a fair trial."
Henry said he and his clients want a to get a verdict, not to have the case dismissed on a technicality.
The case went to trial in early December 1998 but was halted because of the appeal, filed by Special Prosecutor Terry Hord.
Jail Administrative Assistant Nancy Porter was the witness who, citing the Fifth Amendment, refused to testify. Under cross examination, she was asked about allegations of improper document shredding in the days after Sheriff Carl Runion died in November 1991.
Yarbrough granted Porter immunity from state and county prosecution. Still she refused to testify, using the advice of an attorney, for fear of federal prosecution.
Yarbrough did not order her to testify and Hord appealed the ruling, halting the trial. When it resumes, Porter will be expected to testify, with immunity from prosecution.
The judges of the appeals court reached a 2-1 decision, citing another case, stating, " ... the trial court's refusal to compel the testimony was erroneous. We also point out that at oral argument, counsel for the Appellees conceded that ... the trial court's refusal to require Porter to testify was improper and that the matter should be remanded for that purpose. For those reasons, we conclude that Nancy Porter should be compelled to testify."
The ruling said, however, although her testimony cannot be used against her, she could still be prosecuted federally if information of criminal activity is discovered from an independent, legitimate source. The court of appeals called this a "rather limited exception."
"Given the broad effect of the general rule ... the fear that Nancy Porter could still be subject to federal prosecution is unfounded," the decision stated.
In its ruling, Henry said, the appeals court decided to ignore some mistakes by the prosecution, pointed out by the judge with the dissenting opinion.
The dissenting judge stated that the record did not include a document from then-Seneca County Prosecutor Paul Kutscher requesting immunity for Porter. Without that, he stated, the record was not complete, and with an incomplete record there cannot be a meaningful appeal case.
Henry said he is curious to find out about the alleged shredding incident.
"I intend to introduce documents at trial that suggest the county prosecutor actually directed BCI not to look into that issue."
No date has been set for the trial to resume. Henry said this will have to be worked out between Yarbrough and the attorneys.
Yarbrough is to decide the case, not a jury. Yarbrough will be able to review transcripts, documents and his own notes, if needed, Henry said.