Smith v. Montgomery County Sheriff's Office et al

Filing 41

DECISION AND ORDER - If Plaintiff can show some genuine conflict of interest as regards any particular attorney, the Court will consider removing him or her. But in the absence of such a showing, Plaintiff's Motion Opposing Representation of Def endants Montgomery County Sheriff's Office, Paul Henson, and Montgomery County, Ohio, by the Assistant County Prosecuting Attorneys John Cumming and Victoria Watson (Doc. No. 40) is denied. Signed by Magistrate Judge Michael R Merz on 7/8/2011. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BILLY M. SMITH,
Plaintiff,

:

Case No. 3:10-cv-448
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vs:
MONTGOMERY COUNTY
SHERIFF’S OFFICE, et al.,
Defendants.

DECISION AND ORDER

This case is before the Court on Motion of the Plaintiff Opposing Representation of
Defendants Montgomery County Sheriff’s Office, Paul Henson, and Montgomery County, Ohio, by
the Assistant County Prosecuting Attorneys John Cumming and Victoria Watson (Doc. No. 40).
As grounds for removal of these attorneys, Plaintiff says he intends to call Mathias Heck,
Jr., the Montgomery County Prosecuting Attorney, as a witness in his case and may call other
unknown assistant prosecutors. He believes that Mr. Heck and any assistants called as witnesses
would be “immune from disclosure of discoverable evidence, if said legal counsel represented the
defendants.” The Court is unaware of any such legal doctrine. Discovery in this civil case will be
governed by the Federal Rules of Civil Procedure and not either the Ohio Public Records Act or the
Ohio Rules of Criminal Procedure. In any event, if any party claims an immunity from disclosure
of discoverable documents, they must make that claim openly to the Court and allow the Court to
rule on it.
Plaintiff expresses his concern in ¶ 5 of his Motion that his case may be prejudiced if these
Assistant Prosecuting Attorneys at trial vouch for the credibility of any witness who is also an
attorney from Mr. Heck’s office. Such vouching is prohibited by law. Plaintiff is also concerned
that his criminal conviction may “overwhelm the actual Complaint’s allegations...” The criminal
conviction can only be mentioned if it is relevant, but if that is the case, it is likely to be mentioned
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regardless of who the attorneys are for the defense.
Part of the statutory duties of a county prosecutor under Ohio law involve defending cases
of this sort. If Plaintiff can show some genuine conflict of interest as regards any particular attorney,
the Court will consider removing him or her. But in the absence of such a showing, the Motion is
denied.
July 8, 2011.
s/ Michael R. Merz
United States Magistrate Judge

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