Prosecutor, Enquirer Play Fast and Loose with Facts

You don't have to be a liberal or even sympathetic to the plight of homeless people to be outraged by an announcement from Hamilton County Prosecutor Joe Deters on Sept. 2.

Deters, a staunch “law and order” Republican known for his support of law enforcement no matter the circumstances, said his office wouldn't file any felony charges against Cincinnati Police Officer Marty Polk.

As readers might recall, Polk was the officer who drove his police cruiser onto the lawn at Washington Park in Over-the-Rhine on July 27. That's when Polk drove over a blanket, underneath of which lay Joann Burton, a homeless woman who frequented the park. Burton immediately screamed, causing Polk to stop his vehicle and check what was going on.

Burton was crushed by the vehicle's two-ton weight and suffered a lacerated liver and fractured ribs and pelvis. She was taken to a local hospital, where she died shortly thereafter.

Within a day of the incident, Enquirer articles were quoting the 53-year-old officer's sixth-grade teacher, attesting to his fine character. “Marty is one of the sweetest, kindest, caring people you would ever want to know,” the article quoted Arlene Brill. “His character has stayed true to form … he is a very special person.”

Because Cincinnati Police would have an obvious conflict of interest, the investigation into the accident was handed over to the Ohio State Highway Patrol.

That's the last the public heard about the situation until Sept. 2, when Deters announced he wasn't pursuing any felony charges against Polk. At a press conference, Deters said he based his decision on the Highway Patrol's conclusion that Polk didn't act “recklessly,” which would be the legal standard in seeking a felony.

Except the Highway Patrol didn't conclude that. Or at least not yet.

Meanwhile, the city of Cincinnati Solicitor's Office must decide whether to charge Polk with a misdemeanor in Burton's death. That legal standard hinges on whether Polk was “negligent” in the death, acting without taking “due care.”

For good measure, Deters offered his opinion that no criminal charges should be pursued. “Frankly, it’s not my call, but I don’t believe it’s negligence either,” he told The Enquirer. (I'm sure City Prosecutors Ernest McAdams Jr. and Charles Rubenstein appreciate the unsolicited advice, Joe.)

Five days later, on Sept. 7, The Enquirer published another article under the headline, “OSP Report on Woman's Death Backs Deters' View on Case.” The article cited details from “an 87-page Ohio State Patrol report” that stated two witnesses thought no one was sleeping under the blanket.

The report “appears to confirm what Hamilton County Prosecutor Joe Deters said last week,” the article stated matter of factly.

Sounds pretty final and conclusive, doesn't it? Not quite.

When CityBeat and local bloggers, led by Jason Haap, contacted the Highway Patrol Sept. 8, it said the final report wasn't completed and the incident was “still being investigated.”

People who merely heard Deters, read The Enquirer's article or heard subsequent accounts on TV newscasts wouldn't know that.

A quick follow-up look at the patrol's Web site revealed that what The Enquirer wrote about — and what apparently Deters based his decision on — is what's known as a “crash report.” Such reports are freely available to anyone online.

The Web page where the reports may be requested states, “Please be aware that there are a limited number of crashes that require additional investigation beyond the initial report. Additional information resulting from these investigations may not be available until such investigations are complete.”

But let's be clear: The Burton incident did require additional investigation.

A Sept. 8 e-mail from Trooper Jeff Maute stated, “The records you are requesting are not available for release at this time. This incident is still being investigated. I have attached for your review the Public Information Release Report. This is the only document that may be released until the Case Investigation is completed.”

That's certainly not the impression left by either Deters' public statements or The Enquirer's reporting.

Moreover, Deters' own press release on his decision seems misleading. It stated that Deters “announced the results of the Ohio State Highway Patrol's investigation” into the incident. Except the investigation wasn't complete.

Deters' release also stated, “According to police protocol, it is often necessary for park officers to drive their vehicles off of the paved park roadways in order to fully surveil the park.”

Except a police spokeswoman previously told The Enquirer she didn't know of any such policy. Regardless, Washington Park is small enough and open enough that it can be readily viewed without driving onto the lawn.

Finally, Deters' release stated, “Officer Polk was tested for possible alcohol and/or drug use and the results of those tests came back 'negative' indicating that he was not impaired at the time of the accident.”

Except, while technically true, the release didn't state what drugs Polk was on at the time of the mishap. That would be Flexeril, a prescription muscle relaxer, which Polk had taken on an empty stomach. Drug makers warn that “Flexeril may impair mental and/or physical abilities required for performance of hazardous tasks, such as operating machinery or driving a motor vehicle.”

In a court of law, that would be known as “inculpatory evidence,” or something that is relevant because it could be incriminating.

Also not mentioned by Deters or The Enquirer are some interesting statements made by witnesses to the incident.

Witness Tony Ferrell told troopers, “The word on the street is that the cop was chasing a beer drinker.” Yes, folks, it could be that Burton died as Polk pursued someone for a minor misdemeanor, which carries no jail time under Ohio law, only a $150 fine.

Some homeless people who frequent Washington Park tell CityBeat that Polk made a habit of confiscating and destroying their personal items in an effort to drive them away from the area.

CityBeat generally supports the cleaning up of Washington Park and, by some accounts, Polk seems like a decent enough fellow. But the details presented here — and not mentioned by Deters or The Enquirer — paint a fuller and much different picture of what occurred on July 27.

Based on Ohio law, Polk probably couldn't be charged with a felony. Still, Deters jumped the gun if the investigation wasn't complete and omitted facts that might undermine his case.

Savvy politicians know how to spin a story, and all too often media outlets are willing to play along in search of an “exclusive.” In this case, the public wasn't well served by the prosecutor or the local daily newspaper of record.