Butler County Prosecutor Michael Gmoser. File photo.
Sheila McLaughlin reports:
Butler County Prosecutor Michael Gmoser violated the Ohio Public Records Act when he withheld a 911 tape involving a 2012 Father’s Day killing from The Enquirer and a judge was wrong when he sealed the tape, the Ohio 12th District Court of Appeals ruled Monday.
Now Gmoser has been ordered to pay the maximum allowable $1,000 in statutory damages to The Enquirer, as well as its court costs. Gmoser escaped having to pay The Enquirer’s attorney fees.
Michael Ray, 19, of St. Clair Township, confessed to the fatal stabbing of his stepfather in a 911 call to a Butler County dispatcher. He is serving 15 years to life in prison. Photo taken by Glenn Hartong.
The decision stems from the case of Michael Ray, who killed his stepfather, Bryan K. Schmidt Sr., on Father’s Day. Ray was convicted by a jury and is serving a 15-year-to-life sentence in an Ohio prison.
Gmoser had denied The Enquirer’s immediate request for a second call a 911 dispatcher had made to the home, which included a confession from Ray that he had fatally stabbed Schmidt after Schmidt accused him of drinking his beer.
Gmoser contended the call should be excluded as a public record because the release of the call would prejudice Ray’s right to a fair trial. He also claimed that the call was a confidential investigatory record and that it did not qualify as a public record because a dispatcher had called the house back after an earlier call for help was disconnected.
Subsequently, Gmoser filed for a protective order on the 911 call, which Butler County Common Pleas Judge Michael Sage granted without holding a proper hearing.
A recording of the call was released in October after it was admitted as evidence during Ray’s trial.
Despite Gmoser’s arguments, appeals judges noted that 911 operator Debra Rednour’s call to Schmidt’s house still constituted a 911 call because she was not working as an investigator. She merely was trying to gauge the nature of the injury so she could tell emergency responders what they needed to know and if they might confront any danger at the home, the ruling said.
“Although Rednour’s questions to Ray may be useful in prosecuting him, their purpose, and Rednour’s intention in asking them, were only to accomplish her duty as a 911 operator,” the decision said.
Sage could have rightfully sealed the 911 tape, but there was never any evidence presented during the hearing about how release of the tape would impact Ray’s right to a fair trial, the ruling noted.
“Prejudice cannot be assumed or presumed simply because the outbound call recording includes admissions by Ray,” the judges wrote.
As for the attorney fees, the 12th District said Gmoser and Sage acted in good faith to protect Ray’s rights and that the immediate disclosure of the tape would not have enhanced public safety or public awareness of an ongoing threat.
It is unclear whether Gmoser will appeal the decision to the Ohio Supreme Court.
Gmoser was not immediately available for comment.
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