MAN DISMISSED FROM RAPE CASE SEEKS $25 MILLION
Toledo Blade WAUSEON -
A man whose rape charges were dismissed in Fulton County this week is seeking $25 million in damages, contending that he was the victim of "malicious prosecution."
Mark E. Umpenhour and his wife Cathy Zraik have filed a notice of claim for damages with the Fulton County Board of Commissioners. They contend they were damaged as a result of acts allegedly committed by Paul Kennedy, Assistant Fulton County Prosecutor, William Swigart county prosecutor, and Fulton County.
According to the filing, the prosecutors "unlawfully and unethically withheld evidence of innocence despite orders by the court to reveal this evidence." Mr. Umpenhour, 36, was indicted last summer on two counts of rape and two counts of gross sexual imposition stemming from alleged incidents involving a girl under the age of 13 in 1995.
A jury trial in Mr. Umpenhour's case began this week, but Fulton County Common Please Judge James Barber suppressed the state's evidence. The dismissal order was filed yesterday. Alan Eisenberg of Milwaukee, lead trial counsel for Mr. Umpenhour said that Umpenhour's case was the "worst case I've ever seen of prosecutorial misconduct." Mr. Eisenberg alleges that prosecutors repeatedly "rebuffed and denied" requests for the release of necessary vital information helpful to the defense. Judge Barber declined to comment on the case.
Fulton County commissioners have not yet seen the complaint, said Vond Hail county administrator. The notice seeks $15 million in compensatory damages and $10 million in punitive damages from Fulton County, Mr. Swigart, Mr. Kennedy. Lucas County and the Lucas County Children Service Board. Sandy Isenberg, president of the Lucas County commissioners said that she was not aware of Umpenhour's notice.
Mr. Swigart said the case was dismissed for several reasons, including the state's failure to provide the defense with Lucas County Children Services Board record, and to provide Mr. Umpenhour's attorneys with information concerning a Lucas County Ombudsman's investigation. The Prosecution, Mr. Swigart stated, argued that the CSB records are confidential and privileged by state law and that it did not have copies of them or access to them. His office is planning to appeal the judge's dismissal. In addition Mr. Swigart said that the county intends to "vigorously defend itself" against the allegations in Umpenhour's notice of damages.
According to the complaint, CSB made the allegations against Mr. Umpenhour and participated in the presentation of the case to the grand jury. The CSB's file included numerous documents showing evidence of Mr. Umpenhour's innocence said Mr. Eisenberg. The file should have been shown to Fulton County authorities and the grand jury, he said. The file which included more than 1,000 pages, was not turned over to him until Monday morning, an hour before the trial was to begin. Mr. Eisenberg, assisted during the proceedings by Toledo Attorney Mark Jacobs, immediately requested a temporary postponement to give him time to investigate the documents, but the judge denied the request. When the trial began, the prosecution called two witnesses, including the alleged victim, Mr. Umpenhour contends in the complaint that the "alleged victim committed perjury." During the trial, defense attorneys argued several motions for contempt and motions to dismiss. Mr. Umpenhour's attorneys demanded that Mr. Kennedy and the prosecutors office be reported for unethical conduct. After hearing arguments on the motions, Judge Barber ordered all of the state's evidence suppressed. Mr. Kennedy has appealed the Judge's ruling. According to Mr. Eisenberg, the charges cannot be refilled against Mr. Umpenhour.
Mr. Eisenberg would not say where Mr. Umpenhour lives now.
Reprinted with permission
(note: minor editing was done to preserve the layout of the following document. No text was changed or edited except to preserve the privacy of parties involved.)
IN THE CIRCUIT COURT OF THE STATE OF OREGON
A jury was duly empanelled. Following the opening statements or counsel, the State presented evidence and rested. The Defendant thereupon moved for a judgment of acquittal. The Court granted the Defendant's motion. as to Count 9 (Harassment). The Court denied the Defendant's motions as to counts 7, 8 and 10.
The defendant then presented evidence and rested. Following the. State's rebuttal, closing arguments were presented. The jury received instructions from the Court, deliberated and thereupon reached the following verdicts:
NOT GUILTY of the crime of CRIMINAL MISTREATMENT IN THE FIRST DEGREE (Count 7).
NOT GUILTY of the crime of ASSAULT IN THE FORTH DEGREE (Count 8).
NOT GUILTY of the crime of HARASSMENT Count 10).
A copy of the Verdict is attached hereto and by this reference incorporated
1That the jury's verdict be received and entered of record.
2. That the Defendant be hereby discharged.
3. That the security posted on behalf of the Defendant in this matter be hereby exonerated by the clerk in accordance with law.
Dated this 27th day of December, 2001.
IN THE CIRCUIT COURT OF THE STATE OF OREGON
X Not Guilty
We the jury, being duly impaneled and sworn in the above-entitles Court and cause, do find the defendant on the charge of Assault in the Fourth Degree:
X Not Guilty
We the jury, being duly impaneled and sworn in the above-entitles Court and cause, do find the defendant on the charge of Harassment (Garfield Play):
X Not Guilty
Dated this 14th day of December, 2001.
A-TEAM Victory in Oregon Jury Says "Not Guilty"
We don't put every case we win on the web, we pick and choose. The banner case for the year 2000 was one we just finished on Corvallis, Oregon. Our client was facing charges on 11 felony counts. 7 of the 11 counts were for sexual abuse of his daughter. We followed the A-Team formula and had our client tested. As a result of the testing those 7 sexual abuse charges were dropped on the day that trial started. The jury was selected by Ken Pangborn trial consultant.
We went to trial on the 4 remaining charges. On the second day of trial the prosecution rested its case. The judge dismissed another count, leaving 3 to be decided by the jury. We finished our case Friday morning. On Friday afternoon the prosecutor called a rebuttal witness. The case went to the jury for a verdict on the 3 counts at 4 PM. At 3 minutes to 5 the jury came in with their verdict. NOT GUILTY on all 3 remaining counts. While in Oregon it only takes 10 jurors for a verdict, the verdict in this case was unanimous. Most of the hour that was used was used to select a foreman. The verdict was decided on the first ballot.
What is notable about this case was that our client had been in contact with numerous lawyers from all over Oregon. To a man, all told him that he stood no chance at all. And when the local Oregon lawyers heard what our "strategy" was, again to a man they all said; "You can't do that in Oregon." Well we did it. And we had done it before and it succeeded in several cases we had done in different parts of Oregon in the past. The client hung in with us and we destroyed the prosecution on the case. We were offered numerous "plea bargains" during the course of our being on the case. Our client was urged by everyone else to accept the pleas. He was repeatedly told that the offers were great and that a jury was 100% certain to convict. He was told that; "Benton County juries always convict in this type of case." We don't know how true that is, all we know for sure is that the jury did not convict on our case. Throughout the case we were confronted with hidden evidence that sprang at us during the trial. At one point the client was contacted by a police detective who had been in on his original arrest. While they say that it was "harmless" that they just wanted to get a "character reference" on somebody who wanted a job with the police department, we were just a little suspicious that a detective would be seeking a character reference from someone on trial for 11 felony counts. The judge expressed "deep concern" and said that the event was "troubling." It was a clear effort to send a message of intimidation.
We felt we had a strong case from the start. We had an innocent client and lots of evidence to support our position. We used only two of the four experts we had on tap. But this is just one more of a long line of A-Team wins.
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