Lady justice with a colorful sky behind her

Attorney Frank Cassese secures acquittal in aggravated murder case, says verdict proves the criminal justice system works

Attorney Frank Cassese

Attorney Frank Cassese, leader of Betras Kopp LLC’s (BK) Criminal Defense Practice Group, said today’s acquittal of Daundre Turner on charges of aggravated murder, murder, and robbery, demonstrates the value and effectiveness of the criminal justice system. A Mahoning County Common Pleas Court jury returned the not guilty verdicts after deliberating for six hours.

Mr. Turner was accused of the 2016 killing of Omar Croom on Youngstown’s Eastside. Youngstown Police detectives who investigated the crime at the time did not have sufficient evidence to recommend charges be brought against Mr.Turner. He was arrested, charged, and jailed in early 2023 when a different YPD officer reopened the cold case.

According to Attorney Cassese, the prosecution’s case was based on statements offered by Ranee Fitzgerald, Mr. Turner’s spouse who was charged with complicity to aggravated murder in Mr. Croom’s killing. She waived spousal privilege and testified against her husband during the trial. “The prosecution did a very professional, thorough job with the evidence they had, but at the end of the day, they simply could not convince the jury my client was guilty beyond a reasonable doubt.”

BK Managing Partner David Betras said the outcome of the case was determined by two factors: Attorney Cassese’s ability to identify and select jurors who would listen to the evidence with an open mind and his devastating cross examination of Fitzgerald. “Time after time, Frank pointed out inconsistencies and conflicts in her testimony that raised serious doubts about her veracity and credibility,” Atty. Betras noted.

“This verdict underscores the important role preparation, skill, knowledge, instinct, and sheer talent play in criminal trials,” he continued. “Frank spent hundreds of hours examining the evidence and statements the prosecution would offer at trial, preparing for jury selection, and crafting the questions he asked during cross examination—questions that determined the outcome of the case.”

“I’m extremely pleased by the verdict and gratified that Mr. Turner, who has been incarcerated in the Mahoning County jail while awaiting trial was set free today,” Atty. Cassese. “Along with our commitment to doing whatever is necessary to seek and secure justice for our clients, the entire BK team believes the cornerstone of the justice system is the American jury. Today, our faith in that system was validated.”

FTC strikes blow for economic freedom by banning non-compete clauses

Attorney David Betras

BKM Managing Partner David Betras

Nearly every Thursday evening for more than 30 years I’ve hosted “Legally Speaking” on WKBN 570. During the program, which is now also aired live on our Facebook page, YouTube channel, and Instagram, I and attorneys from my firm answer listener questions, dispense sage, insightful, and free legal advice, and engage in entertaining and informative banter about various aspects of the law.

Over the course of the approximately 1,500 episodes that have been broadcast some issues have been raised so many times they’ve made it onto the Legally Speaking “greatest hits” list. They include disputes among neighbors related to property damage caused by trees and tree branches that crash to earth, domestic relations disputes, disputes among heirs, whether local governments can be forced to pay for flat tires and ruined wheels caused by potholes, and the enforceability of employment non-compete agreements.

That non-competes are a frequent topic of discussion on the show may come as a surprise to some. It shouldn’t. According to the Federal Trade Commission (FTC), 30 million people or one in five American workers are bound by restrictive agreements that trap them in jobs they no longer want or prevent them from accepting new positions that offer better pay and working conditions.

And, as this compelling video and the desperate people who call Legally Speaking make clear, the agreements rob everyone from CEOs, to tech workers, to salespeople, to hair stylists of their freedom to choose where and by whom they are employed. Originally intended to prevent CEOs and other executives from stealing trade secrets, studies show that millions of low paid workers like janitors, cooks, and waiters, are subject to the agreements even though they have no access to trade secrets or confidential corporate information.

We’re often asked if Ohioans can be forced to sign non-competes as a condition of employment and once signed if they can be enforced. The answer to the former question is yes, people may be forced to sign the agreements as a condition of employment. The response to the latter is more complicated. Non-competes are enforceable if a judge finds they are “reasonable” under this three-part test that was developed by the Ohio Supreme Court. To pass the test, agreements must not:

  • Be greater than necessary to protect the employer’s legitimate business interests
  • Impose undue hardship on the employee
  • Be injurious to the public

But, as we tell those who call us to seek advice, challenging a non-compete can be a costly and time-consuming endeavor that most workers who find themselves chained to a job are unable to afford, a fact that adds to the fundamental unfairness of a situation that robs Americans of their basic economic rights.

Fortunately, and in an action that proves government can actually solve problems, the FTC enacted a nationwide ban on new non-competes by a 3-2 vote on April 23. The action came two years after President Biden urged Commission members to “curtail the unfair use of the agreements.” More than 26,000 people submitted public comments about the proposed rule during the time it was under consideration.

“Noncompete clauses keep wages low, suppress new ideas, and rob the American economy of dynamism, including from the more than 8,500 new startups that would be created a year once noncompetes are banned,” FTC Chair Lina M. Khan said in a statement issued following the vote. “The FTC’s final rule…will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.”

Predictably, the U.S. Chamber of Commerce which had vehemently opposed the ban, decried the vote and said it would sue to block imposition of the rule because it would “undermine American businesses’ ability to remain competitive.”

I’m not quite sure how empowering a hair stylist in Toledo to work in a salon where she can make more money or enabling an auto mechanic to accept a better paying job will undermine the American economy, but in my opinion freeing millions of Americans to pursue their careers and their dreams is worth the risk.

David Betras, Brian Kopp announce plans for continued growth as their law firm marks 25th anniversary

Attorneys David Betras and Brian Kopp marked the 25th anniversary of the founding of one of the region’s most respected and successful law firms by reaffirming their commitment to the communities they serve and unveiling a comprehensive plan that will ensure the continued growth of their multi-disciplinary, multi-state practice which will now operate under the name Betras¨ Kopp LLC.

The firm was founded in 1999 when Betras, who began practicing law with his father Joe and Uncle Pete after graduating from Capital University Law School in 1985 and Kopp who had just completed a Federal Clerkship with United States District Court Judge Peter C. Economus decided to strike out on their own. In addition to building a thriving practice in the Mahoning Valley, Kopp spearheaded both the firm’s expansion into Tampa and Sarasota, Florida, and the impressive growth of BK’s complex corporate litigation and sports law practice. Attorneys Betras and Kopp have both earned the prestigious “SuperLawyers” designation.

The partners recently began implementing their plan for growth by adding attorneys Frank Cassese and James Melfi to the firm’s roster of outstanding lawyers. Attorney Cassese, who graduated from Cardinal Mooney High School and Ohio State University before receiving his law degree from Cleveland Marshall School of Law in 2015, will focus on civil and criminal litigation. Attorney Melfi, a graduate of Girard High School and Miami University (OH), received his Juris Doctorate from Capital University Law School in 2019. He is licensed to practice in Ohio and Florida and is a member of the firm’s Complex Litigation Practice Group.

“In addition to impressive legal skills and credentials, Frank and Jim bring an incredible amount of energy to the firm,” Attorney Betras said. “They are eager to learn, possess strong work ethics, and are more than willing to put in the long hours it takes to seek and secure justice for our clients.”

“Adding these two talented attorneys to our team will enable us to significantly expand the firm’s professional and geographic reach and maintain the strong presence we have in our existing markets,” Attorney Kopp, leader of BK’s complex litigation and sports law practice groups said. “David and I are pleased Frank and Jim \joined the firm and excited about the prospect of working and growing with them in the years ahead.”

According to Atty. Betras, the growth strategy also includes rebranding the firm. “Over the past 25 years we’ve operated under a number of iterations of Betras, Kopp and someone,” he said. “Every time we changed the name we had to go through the costly and time-consuming process of changing everything from our letterhead to our TV ads, to our digital platforms, to our business cards, to our corporate registrations. It’s a process we do not want to repeat multiples times as we expand in the years ahead.”

“So, we decided to do it one more time and build off Betras and Kopp, the names that are at the core of our corporate identity,” Betras continued. “We’ve changed the firm name to Betras¨ Kopp LLC Attorneys at Law and have adopted a new, clean, modern logo. Our website URL is now www.betraskopp.com, we’re producing new TV ads, revising and upgrading our digital platforms and content, and taking all the steps necessary to inform our clients, the legal community, and the public about our new brand.”

While the makeup of the firm and its name are changing, one thing remains constant: David Betras’ and Brian Kopp’s commitment to their hometown. “For nearly a century residents of the Valley have relied on us to meet their legal needs,” Betras said. “It started in 1929 when my Uncle Pete opened a small law office in downtown Youngstown. When my dad, Joe, returned from serving in World War II, he used the GI Bill to go to law school and joined him. After being immersed in the law our entire lives my cousin Brian and I launched our first firm in 1999, and now, a quarter-century and thousands of satisfied clients later, he and I are writing a new chapter in our family’s legal legacy.”

BKM Managing Partner David Betras scores a big win for Trumbull County Commissioner Niki Frenchko, democracy, and Constitutional rights in federal court…

Federal Judge rules Trumbull County officials repeatedly violated Niki Frenchko’s Constitutional rights, Commissioner vows to continue fight for government accountability and transparency

BKM Managing Partner David Betras and Trumbull County Commissioner Niki Frenchko

“Here in America, we do not arrest our political opponents.” Those tens words comprise the first sentence of a scathing 81-page opinion in which U.S. District Court Judge J Philip Calabrese found that Trumbull County Commissioners Frank Fuda and Maro Cantalamessa, Trumbull County Sheriff Paul Monroe, and Trumbull County Sheriff deputies Harold Wix and Robert Ross willfully violated Commissioner Niki Frenchko’s rights under the First and Fourth Amendments to the U.S. Constitution when they repeatedly attempted to silence her and prevent her from representing the interests of her constituents.

The ruling comes in a federal civil rights lawsuit filed on Commissioner Frenchko’s behalf in March of 2023 by Attorneys David Betras and Matt Miller-Novak formerly of Austintown, Ohio who now practices in Cincinnati. In the suit they alleged that Commissioner Frenchko’s arrest during the July 7, 2022 Trumbull County Commissioners meeting was a “…ruthless false arrest intended to punish a political adversary for criticizing the County Sheriff…” In addition to finding that the five defendants had indeed violated Commissioner Frenchko’s rights, Judge Calabrese also stripped them of their sovereign immunity which means they can be held individually liable for monetary damages.
“I was compelled to file this suit because if public officials can use their offices and power to silence me, they can do it to anyone,” Commissioner Frenchko said after the decision was announced. This is a tremendous day for freedom of speech, the rule of law, and democracy,” “The people of Trumbull County elected me in 2020 because I promised to bring transparency and accountability to county government. When I kept my word, I was harassed, assaulted, and ultimately arrested, but I would not be intimidated. Today’s ruling both vindicates what I have done in the past and gives me the strength to continue fearlessly doing the people’s business in the months and years ahead.”
“I said at the time that this incident was a scene out of Russia and other dictatorships where despots like Vladmir Putin and Syria’s Bashar al-Assad routinely arrest and jail their political opponents,” Atty. Betras said. “But there it was, live on Facebook, an elected official arrested and silenced by her political enemies for exercising her First Amendment rights. It was absolutely chilling and I and Commissioner Frenchko are truly grateful that those who committed these vile acts are now being held accountable. This decision sends a loud and clear message: political oppression is not acceptable in the United States.”
Check out media coverage of the case on these outlets:

A cautionary tale for gun owners and anyone who has been adjudicated as a juvenile delinquent

Attorney David Betras
BKM Managing Partner David Betras

One of the fascinating things about trying criminal cases—and one of the things that will keep me at it until I fall over at my desk—is that you never know where the law and the facts will take you. I was reminded of that reality during a just-concluded high-profile murder trial in which the provisions of Ohio’s “Constitutional Carry” firearms statute and my client’s failure to have his juvenile record sealed and expunged converged to forge the plea deal I negotiated on his behalf.

That said, this week’s column should serve as a cautionary tale for gun owners, any who has been adjudicated as a juvenile delinquent, and parents.

Chapter One: Where you can’t carry a firearm in Ohio.

While Ohio’s recently enacted Constitutional Carry law has relaxed or removed many of the statutes related to carrying a concealed weapon, including the need to apply for a permit and undergo training, it has not turned the entire state into Dodge City. There are still places the Wyatt Earps and Doc Holidays among us may not enter if they are packing. They include:  

  • Police stations, sheriff’s offices, highway patrol posts
  • Correctional institutions or other detention facilities
  • Airport terminals or airplanes
  • Courthouses
  • Universities, unless expressly permitted
  • Places of worship, unless the place of worship permits otherwise
  • School safety zones: schools, school buildings, school premises, school activities, and school buses
  • Private businesses, including bars, restaurants, and other places that serve alcohol may prohibit the carrying of concealed weapons but must post a notice of the prohibition in a conspicuous place.

That last proved problematic for my client because he did carry a concealed weapon into a bar/restaurant that expressly prohibits doing so which is a third degree felony punishable by up to three years in prison and a fine of up to $10,000.

He shouldn’t have done that—and neither should you. Take my advice, nothing good comes of carrying a concealed weapon into a place where people are consuming alcohol—especially if one of the people is you. BKM’s rule pertaining to driving while under the influence–Don’t Do It—also applies to doing shooters and carrying a shooting iron.

Chapter Two: Carrying a weapon under disability.

And, no I’m not talking about workers’ comp or SSDI. I’m referring to the Ohio law that makes it a crime to knowingly acquire, carry, or use any firearm or dangerous weapon if you:

  • Are a fugitive from justice;
  • Are under indictment for or have been convicted of any felony offense of violence;
  • Are under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse;
  • Are drug dependent, in danger of drug dependence, or a chronic alcoholic;
  • Are under adjudication of mental incompetence, have been adjudicated as a mental defective, or have been committed to a mental institution;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

If you guessed that my client ran afoul of the juvenile adjudication thing, give yourself a gold star. Like carrying a concealed weapon into a prohibited place, possessing a firearm under disability is a third degree felony punishable by up to five years in prison and a $10,000 fine.

Again, take my advice, this is something you really should not do.

Chapter 3: Failing to seal and expunge juvenile records can haunt you well into adulthood

Because the state of Ohio believes juvenile offenses should not impact a person’s life until they day they die, the General Assembly created a process for sealing and expunging juvenile court records. If you or someone you know has been adjudicated as a juvenile delinquent, I implore you to take advantage of the opportunity to obtain the fresh start the state is offering.

The client in the case I’m discussing today did not, and, as I noted above, that left him open to the charge of possessing a firearm under disability. While not as serious, failure to seal and expunge a juvenile record can make it difficult to get a job, be admitted to college, or obtain a credit.

Here is a brief overview of what is a complicated process:

First, let’s define our terms.

Sealing a record means it still exists but is hidden from public view. A sealed record can still be seen in limited circumstances by the Courts, law enforcement, or the defendant.

Expunging a record means all physical and electronic versions of the record are destroyed. The record then no longer exists, and for all intents and purposes, it never existed. Once the record is expunged you can truthfully say that you do not have a juvenile record.

Before records can be expunged, they must be sealed. All offenses, except for aggravated murder, murder, and rape may be sealed and expunged.

Contrary to what many people believe, with few exceptions, juvenile records are not automatically sealed and expunged by the courts. You must apply. I am sure that most readers will not be surprised to learn that as this guide clearly shows, the process is complicated and laborious. The law does not require applicants to be represented by an attorney, but if you take a look at the publication referenced above, you may decide to contact a lawyer.

Chapter 4: Conclusions

What have we learned from the cautionary tale?  Don’t carry a firearm into someplace you shouldn’t, don’t carry a weapon under disability, and do take advantage of the law that allows you to seal and expunge your juvenile record.

The End.

Do Trump gag orders pass constitutional muster? Probably not.

“Writing is easy. You only need to stare at a blank piece of paper until drops of blood form on your forehead.” Gene Fowler, American journalist

Attorney David Betras
BKM Managing Partner David Betras

Anyone whose job is or involves creative writing will agree with Gene Fowler. I’ve cranked out more than 200 of these columns over the years and I can tell you that staring at my computer monitor when the only thing on the screen is a blinking cursor—the days of paper and pen having disappeared long ago—is a frightening and frustrating experience.

Deciding what to write about is among the most difficult challenges I face. Some weeks my brain is devoid of possible topics, others my cranium is stuffed with so much flotsam and jetsam you’d need a Coast Guard icebreaker to cut through it. This week proved to be the latter because as I sat down and hovered my hands over the keyboard a number of my favorite subjects were bouncing around in my nugget: I decided to write about two of them: Donald Trump and the First Amendment.

Let’s jump in.

As most of you know, Donald Trump is embroiled in a dizzying array of  legal proceedings: a civil lawsuit in New York involving allegations the former president deceived banks, insurers and others by exaggerating the value of his assets, and four pending criminal trials related to charges that he engaged in a conspiracy to prevent the certification of Joe Biden’s victory in the 2020 presidential election, mishandled classified documents, paid hush money to coverup extramarital affairs, and violated Georgia’s anti-racketeering laws by plotting to overturn his loss in the state’s 2020 presidential contest.

All the cases are enthralling because this is the first time in history a former occupant of the Oval Office has been indicted on criminal charges, but the civil fraud and federal election interference proceeding are particularly fascinating because the judges presiding over them have issued gag orders against Mr. Trump. As my regular readers know, while I’m a huge fan of the First Amendment, I do recognize that the courts may limit free speech. For example, there is this well-known passage written by U.S. Supreme Court Justice Oliver Wendell Holmes in 1919:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…

Judges are permitted to issue gag orders if they believe there is a credible fear that jurors may be swayed by statements in the media or online, if people involved in the case could be threatened or harassed, or if confidential information could become public.

Judge Arthur Engoron, the New York State judge overseeing the civil lawsuit, told all participants in the case not to smear court personnel and warned that violations would trigger serious sanctions. Shortly after the trial began on October 2 Mr. Trump posted a photo of Allison Greenfield, the judge’s principal law clerk on Truth Social, his social media platform and said it was “disgraceful” that she was working in the courtroom. The judge reacted by slapping a gag order on the former president who has violated it twice and been fined a total of $15,000.

Given the fact the Mr. Trump’s ardent supporters have a proven record of attacking people who offend him, the judge’s reaction was at the very least prudent and met the standard of preventing or in the case of the former president attempting to prevent him from making public statements that could cause harm Ms. Greenfield.

U.S. District Judge Tanya Chutkan who is presiding over the election interference case imposed a partial gag order on Trump after special counsel Jack Smith and his prosecutors argued that the ex-president’s statements about the case risked prejudicing the trial. Mr. Trump has often railed against the judge, Smith and his staff, the jury pool in Washington, D.C where the case is being tried, and potential witnesses.

The order, which is now on hold pending an appeal by Mr. Tump’s attorneys, bars him and other parties in the case from making public statements about Smith, the defense counsel, members of the court or any of their staffers. They are also prohibited from targeting “any reasonably foreseeable witness or the substance of their testimony.”

Interestingly, the American Civil Liberties Union (ACLU) has filed a friend of the court brief in which they argue that the order is too vague, broad, and is not sufficiently justified. In a press release ACLU executive director Anthony Romero noted that “No modern-day president did more damage to civil liberties and civil rights than President Trump. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.” 

In their brief the ACLU said Trump has made many “patently false” statements that have “caused great harm to countless individuals,” but he “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” They also assert that any restraint on the former president’s speech must be “precisely defined and narrowly tailored,” and concluded that Judge Chutkan’s order “fails that test.”

Is the ACLU right? I tend to object to prior restraint, and while Mr. Trump has in the past made troubling statements, in my opinion he has yet to cross the line in this case. Of course, there’s still plenty of time, the trial is not scheduled to begin until March 2024.

Alford Pleas: understanding why innocent people sometimes plead guilty…

Attorney David Betras
BKM Managing Partner David Betras

In the tradition of popular TV series like Ozark, Succession, Yosemite, and Breaking Bad, last week’s column was a cliffhanger. As you may remember, as I signed off I was ensconced in bucolic Findlay, Ohio busily preparing for a jury trial in Hancock County Common Pleas Court that was scheduled to begin on Monday, October 2. I had done my due diligence, readied my defense, pored over the prosecution’s exhibits, and was geared up for voir dire which is fancy way of saying selecting a jury. Just wait, there’s more legalese to come in the column.

Anyway, I was fired up, ready to go and—now for the resolution of the cliffhanger you’ve all been sitting on the edge of your seats awaiting: the verdict. Was my client found guilty or not guilty by a jury of his peers? Well, you can sit back and relax there was no courtroom drama because my client was offered accepted a plea deal before the trial began.

To be more specific, he entered an Alford Plea which permits defendants to admit to criminal charges while maintaining their innocence. A defendant who enters an Alford Plea is, in essence, acknowledging that the prosecution has enough evidence to convict them even if they did not commit the crime. To understand why an innocent person would agree to plead guilty, it is helpful to examine the case of Henry Alford, the man for whom the Alford Plea is named.

In 1963 Mr. Alford was indicted for first degree murder in North Carolina where the death penalty was the default sentence for the offense at the time. Alford would probably have received a life sentence had he pleaded guilty, but he maintained his innocence. He subsequently agreed to plead to second degree murder for one reason and one reason only: to avoid the gas chamber. He was sentenced to 30 years in prison.

Alford appealed, arguing that he was forced into a guilty plea because he was afraid he would be sentenced to death. The North Carolina Supreme Court and a Federal District Court both found that Alford had entered the guilty plea voluntarily and denied his appeal. The Fourth Circuit Court disagreed and held that Alford’s plea was not voluntary because it was made under fear of the death penalty.

In a 6-3 decision handed down in 1970 the U.S. Supreme Court reversed the Circuit Court. Writing for the majority Justice Byron “Whizzer” White said courts may accept whatever plea a defendant chooses to enter, as long as the defendant is competently represented by counsel; the plea is intelligently chosen; and “the record before the judge contains strong evidence of actual guilt.” Faced with “grim alternatives,” the defendant’s best choice of action may be to plead guilty to the crime and the courts must accept the defendant’s choice made in his own interests.

Since then, the Alford Plea have become an important component of a criminal justice system in which more than 90% of cases are resolved with plea bargains. As I did last week, I have advised defendants to enter Alford Pleas. Why? Because although I revere the jury system, clients I knew to be innocent were convicted and received stiffer sentences than would have been imposed had they agreed to a plea deal.

Does the fact that the Hancock County case ended in a plea deal mean all the work I did to prepare for it was wasted? The answer is no. In the course of dissecting the prosecution’s case I discovered some evidence that I believed was inadmissible and should not be heard by the jury. Based on that discovery, I filed, and the judge granted what is known as a “motion in limine” which excluded the evidence in question from the case. The exclusion of that evidence significantly weakened the state’s case, substantially strengthened my bargaining position, and enabled me to secure the best possible outcome for my client.

Outcome of jury trials dependent on defense attorney’s experience, talent, skill

Attorney David Betras
BKM Managing Partner David Betras

As I write this week’s column, I am busily preparing for a jury trial in Hancock County Common Pleas Court which is located in beautiful, downtown Findlay, Ohio. I’ve lost track of exactly how many jury trials I’ve participated in during my more than three decades as a practicing attorney, but I can say the outcomes have provided most of the highlights and lowlights of my career—and truth be told–I remember a lot more about my losses than my wins.

Why does the angst associated with guilty verdicts last longer than the euphoria that accompanies acquittals? Because the outcome of each trial is in many ways dependent on the defense attorney’s experience, talent, intelligence, rhetorical skill, knowledge, and yes—acting ability. We select the jury, we carefully study and prepare to nullify the evidence and undermine—if not destroy—the credibility of the witnesses presented by the prosecution, we build our defense and craft a compelling narrative that will convince the jurors that our client is not guilty beyond a reasonable doubt, and then we write and deliver a captivating closing argument that will enthrall the jury and win the case.

What could possibly go wrong?

Obviously, lots, which is I and many of my colleagues sit straight up in bed at 3:00 AM and reexamine every facet of a case that ended in a guilty verdict. Did I miss something in jury selectin? Was I slow to respond to an unexpected piece of evidence or testimony. Did my exhibits fall flat. Did I fail to connect with jurors?  I’ll often replay every minute of a trial in my head to identify what I did right and what I could have done better.

While the process is agonizing it is also extremely valuable because practical experience is an indispensable asset to a trial lawyer. That is because although they teach basic trial tactics and the rules of civil and criminal procedure in law school, there is no substitute for preparing and trying cases on behalf of clients who place their freedom, their future, and in some instances their very lives in your hands. Take it from me, courtrooms, not classrooms, are the only places attorneys like me learn to ply our trade.

Yet, despite all the preparation and trepidation involved, I love jury trials and the jury system. And I’m not alone. Throughout history the jury system has been a foundational pillar of civilized societies. Nearly 3,000 years ago bodies known as dikastai composed of as many 1,501 citizens rendered verdicts by majority rule in cases ranging from mundane matters to those involving death, exile, and seizure of property.

The Roman Empire also featured a precursor of modern juries in which capital trials were conducted before thousands of citizens. Interestingly, high government officials and their relatives, people who had been convicted of felonies, gladiators for hire, and men younger than 30 or older than 60 were barred from jury service.  

The system continued to evolve though the centuries and began to resemble the process and configuration that exists today in the late 900s when King Etheired the Unready of England instituted the Wantage Code which required the 12 leading minor nobles in small districts to investigate crimes. These juries differed from modern ones because there were no trials—the jurors were responsible for investigating cases and rendering verdicts on their own.

Juries took a major leap forward during the Reign of King Henry II in the mid 1100s. He established both a process in which a jury of 12 free men arbitrated property disputes and formed grand juries whose members were to report any crimes they knew of to a judge who would then conduct a trial by ordeal. As you might imagine, the guilt or innocence of the defendant was determined by subjecting them to one or more painful experiences. This system was based on the premise that God would help the innocent by performing a miracle on their behalf. Trial by ordeal fell out of favor when Pope Innocent III prohibited priests from participating in trials by fire and water. I can say this, if they were still around, I would have found a different occupation.

The right to trial by jury, along with the entirety of British Common Law, continued to advance and served as both one of reasons for the American Revolution and the basis for the judicial system America’s Founding Fathers enshrined in the Fifth, Sixth, and Seventh Amendments to our Constitution. Thomas Jefferson specifically cited King George’s decision to deprive colonists of trial by jury as a grievance in the Declaration of Independence and John Adams wrote that “…representative government and trial by jury are the heart and lungs of liberty.  Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

I am 100 percent in agreement with Adams, which explains why I believe we all have a civic duty to vote and serve as jurors—and why I refuse to help anyone skirt jury duty. Under Ohio there are very few reasons people may be exempt from service and even those who qualify must be excused by a judge. In the interest of full disclosure, I’ve received a jury summons and duly reported for duty. Unfortunately, I was excused and denied the opportunity to get a very close look at the dynamic that takes place during deliberations. That is an experience I would have relished and used for the remainder of my career.

Students’ right to privacy is limited in public schools, random searches of lockers/contents permissible under the 14th Amendment…

Attorney David Betras
BKM Managing Partner David Betras

To the relief of parents and the chagrin of students, summer is over and a new school year has begun. That makes this an opportune time to convene another session of Professor Dave’s Shade Tree Legal Academy. During today’s lecture I will discuss whether the law allows public school teachers and administrators to search students and their property. It’s a fascinating topic that involves the Fourth Amendment, a landmark Supreme Court decision, and state statutes.

Class is about to begin so please no gum chewing, turn off your cell phones and handheld devices, and, as usual, there will not be quiz or test on this material because Professor Dave doesn’t have time to grade them.

Let’s begin our exploration of the topic with a look at the Fourth Amendment which states in part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” For years various state and federal courts reached various conclusions regarding the applicability of the Amendment to public schools. The issue finally was resolved in 1985 when the U.S. Supreme Court handed down its landmark ruling in New Jersey v. T. L. O.

The case revolved around TLO, a 14-year-old New Jersey high school student who was caught smoking in a school bathroom by a teacher. The teacher escorted TLO to the school office where she was questioned by assistant vice principal Theodore Choplick. During the questioning, the student denied that she had been smoking and said she “did not smoke at  all.” At that point, Mr. Choplick demanded to see her purse, opened it and found a pack of cigarettes and rolling papers. He continued to search the purse and found a small amount of marijuana and a list of students to whom she had sold pot. The police were called and TLO was eventually found to be delinquent by a juvenile court judge and placed on probation for one year.

During the juvenile court proceeding TLO filed a motion to suppress the evidence found in her purse because the search had violated the Fourth Amendment. The juvenile court judge denied the motion because Choplick “had reasonable cause to believe that smoking, a violation of school policy, had occurred” TLO’s appeal of the juvenile judge’s ruling was rejected by the New Jersey Superior Court. The New Jersey Supreme Court then ruled that Choplick’s search of TLO’s purse had violated the prohibition against unreasonable search and seizure and reversed the decision. The state then appealed the case to the U.S. Supreme Court.

In a 6-3 decision authored by Justice Byron “Whizzer” White, the Court ruled that students were protected by the Fourth Amendment. Unfortunately for TLO, the justices also held that in the interest of maintaining order and discipline, officials could search students in a public school environment without a warrant or meeting the probable cause standard that applies to adults as long as they had a “reasonable suspicion” to believe a rule or law had been violated. Because she had been caught smoking in the bathroom and taken directly to the office, the justices found it was reasonable to assume she had cigarettes in her purse which, in turn, gave the vice-principal reasonable cause to search the purse.

Voila, a new precedent—and the basis for laws and regulations that govern searches in public schools was born.

What does that mean for Ohio students? It means that under ORC 3313.20  a principal may search any pupil’s locker and its contents if they reasonably suspect that “…the locker or its contents contains evidence of a pupil’s violation of a criminal statute or of a school rule;”

In addition, the statute permits the random search of all lockers and contents at any time provided the school has posted signs in conspicuous places that notify students that all lockers are the property of the board of education. In this situation neither the Fourth Amendment nor the “reasonable suspicion” standard apply. Bottom line: if that notice is posted in your school don’t put anything in your locker you don’t want a teacher or principal to find.

The reasonable suspicion standard also applies to searches of desks, backpacks, and cars parked on school property. One exception: the Ohio Supreme Court has ruled that the standard does not apply to searches of unattended backpacks.

The standard does not apply when students do not have a reasonable expectation of privacy, i.e. items that are in plain view, school property such as computers, including laptops owned by the school that students are permitted to take home. Student activity on school internet networks and the browsing/download histories are also subject to search and review.

While the rules that apply to public schools may seem to invite invasion of students’ privacy, the rules that apply to private schools are even more draconian because, for all intents and purposes, privacy protections exist do not exist.

So there you have it class—understanding your rights, or lack thereof, will help you avoid trouble. And, oh, by the way, you don’t have to worry about Professor Dave searching your locker or electronic devices, I respect the Fourth Amendment and anyway, I just don’t have the time.

Atty. David Betras, family members call for independent investigation of Betty Jean Winston’s death while in custody at the Mercer County Jail, 36-year-old was found lifeless in her cell after being maced and tased by deputies

Citing serious concerns and numerous unanswered questions about the circumstances surrounding Betty Jean Winston’s death while in custody at the Mercer County Jail, Attorney David Betras and members of Ms. Winston’s family today called on Mercer County District Attorney Peter Acker to allow an independent agency to investigate the tragic incident. Ms. Winston, who was 36 years old, was found dead in her cell on Wednesday, July 26 after being maced and tased by a Mercer County deputy.

“The Mercer County Sheriff’s Department should not be conducting the investigation into Ms. Winston’s death because they will in essence be investigating their own potential misconduct,” Atty. Betras said. To avoid any appearance of impropriety or conflict of interest, my clients demand that District Attorney Acker immediately ask the Pennsylvania State Police to assume control of the inquiry. We believe that will ensure that the truth is uncovered and revealed to the family and the public”

Ms. Winston, who has a documented history of mental illness, was taken into custody on July 22, 2023 and charged with third degree misdemeanor Disorderly Conduct-Unreasonable Noise. Her bail was set at $15,000 which is more than seven times the maximum fine allowable for the offense under Pennsylvania law. She was unable to post bail and remained in jail. On July 26, deputies used a taser to subdue Ms. Winston and confined her to a cell and failed to provide her with any medical attention. She was discovered lifeless later that evening in the same location where deputies had left her earlier.

“We are disturbed by the fact that this African American woman died in and was spirited out of the Mercer County Jail in a manner that appears to have been designed to avoid media and public scrutiny,” Atty. Betras said. “This family and this community need and deserve answers from all involved and we will do whatever is necessary to obtain them.”

Text of the letter sent to Mercer County District Attorney Peter Acker:

RE:     The Estate of Betty Jean Winston, Deceased

            Date of Death: July 26, 2023

Dear Attorney Acker:

As you know, I represent the family members of Betty Jean Winston who tragically died while being held as a prisoner at the Mercer County Jail on the above date. Ms. Winston, a 36-year-old African American woman with documented history of mental illness, was taken into custody on July 22, 2023 on charges of third degree misdemeanor Disorderly Conduct-Unreasonable Noise, 18 Pa. C.S. § 5503(a)(2). Ms. Winston’s bond was set at $15,000 which is more than seven times the maximum fine allowable for the offense by Pennsylvania law.

While the facts have been limited, it has come to my attention that Ms. Winston was suffering from a schizophrenic episode throughout the time she was an inmate at the County Jail. On July 26, 2023, deputies used a taser to subdue Ms. Winston and confined her to a cell without any medical attention. Ms. Winston was discovered lifeless later that evening in the same locations where deputies left her.

It is my understanding that the Mercer County Sherriff’s Department is currently investigating the circumstances surrounding Ms. Winston’s death. This includes an inquiry into the Department’s own potential misconduct. To avoid any impropriety, my clients are demanding that the investigation be conducted by an independent agency such as the State Police. This act of transparency will allow Ms. Winston’s family to uncover the truth and ensure the public that the Mental Health Procedures Act of 1976 is being properly implemented at the Mercer County Jail.

I appreciate your prompt attention towards addressing my clients’ concerns.

Sincerely,

David. J. Betras, Esquire