Staff file photo / Ed RunyanDefense attorney John Juhasz speaks during a Mahoning County court proceeding earlier this year.
YOUNGSTOWN — Attorneys for Daniel B. Fleischer, 42, who was sentenced to 37 years in federal prison in 2019 for taking still images of himself sexually assaulting a young girl, have filed a motion asking that another case of Fleischer’s be dismissed.
Fleischer was indicted in 2021 in Mahoning County Common Pleas Court on two counts of rape that carry a possible life prison sentence, as well as five counts of gross sexual imposition that each carry a possible prison sentence of several years.
The issue of whether Fleischer can be convicted of nearly the same conduct in both federal and state courts was the subject of an appeal in the Ohio 7th District Court of Appeals that found that Fleischer can be tried on such similar conduct under the doctrine of dual sovereignty. That doctrine “allows for separate prosecution of crimes in federal and state court based on the same set of underlying facts,” according to the September 2023 appeals court ruling.
As a result of the appeals court ruling, Fleischer continues to be under indictment on the rape and gross sexual imposition charges. He has been in the Mahoning County jail awaiting trial since April 19, according to jail records.
On Monday, attorneys John Juhasz and Donald Scott, who represent Fleischer, filed a motion in common pleas court asking for the common pleas charges to be dismissed based on what his attorneys call interference with Fleischer’s “constitutional trial liberties” because of a policy in effect in the Mahoning County jail.”
The policy is that jail officials open inmate mail from the inmate’s legal counsel, copy it and give the inmate the copy. The problem is that the original correspondence, “as counsel understands it,” “is stored under the control of the State of Ohio, acting through the sheriff,” the filing states.
The filing argues that keeping such mail under the control of the sheriff’s office makes it impossible for legal counsel to be sure that the mail is not being read by jail officials.
The filing states that the original correspondence is not destroyed or shredded, nor is it returned to the lawyer who sent it. The filing states that counsel is “unaware of any instances where attorneys have actually introduced contraband into the jail via privileged legal mail.”
It states that local defense attorneys “were alarmed at the practice,” so members of the bar association met with representatives of the sheriff’s office to propose that inmates be given the pretrial evidence in the case — called discovery — on a flash drive or other computer hardware. They would be able to view it on computers available to inmates, the filing states.
However, in Fleischer’s case, he appears to have cognitive difficulties and has indicated he wants to receive his legal mail in paper format “so that he can have as much time as he needs in his cell to review the items,” the filing states. It adds that in addition to court-related documents, Fleischer may need to receive documents that contain much more sensitive information from his attorneys, such as trial strategy, plea offers and legal advice.
The filing argues that the policy “undercuts the traditionally and legally well established confidentiality and privileged nature of attorney-client communications.” It states that Juhasz and Scott contacted Mahoning County jail officials on the issue and heard back from the county prosecutor’s office, which said the policy was legal.
But Juhasz and Scott disagree, saying “there is absolutely no justification for the government keeping the original, privileged communication” from an attorney to an inmate.
The defense filing cited an Ohio Supreme Court ruling that stated it is acceptable for jail officials to open an inmate’s legal mail in front of the inmate to check for contraband, but it “prohibited prison officials from reading legal mail.” The Ohio Supreme Court “rebuffed prisoners’ concerns that even the revised policy interfered with prisoners’ constitutional rights.”
The filing asked Judge Anthony Donofrio of Mahoning County Common Pleas Court, who is handling Fleischer’s case, to hold a hearing at which time Fleischer’s attorneys will “demonstrate the exact conditions under which the originals are kept.” That hearing is now set for 1:30 p.m. July 25.
Inmates are guaranteed a “right to a defense” by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution and elsewhere, but the idea of “procedural fairness” “would be an empty one if the State were permitted to remain privy to the most private conversations between counsel and the client,” the motion states.
Attorneys are required to keep their communications with their clients private, so “allowing the sheriff to have a copy of every mailing made by counsel when the client has not consented,” is an attorney being complicit in a violation of attorney-client privilege, the filing argues.
Juhasz and Scott asked the sheriff’s office for “reasonable accommodations” that would better protect their client and “comply with the State’s claims of a security interest,” but the county refused to bend, the filing states.
SHERIFF AND PROSECUTOR
When Sheriff Jerry Greene and Mahoning County Prosecutor Gina DeGenova were asked about the jail’s policy on legal mail, DeGenova stated in an email that the policy of copying inmate mail was implemented at the Mahoning County jail in 2021 to “alleviate a known security risk.”
She said the policy was prompted by a note jail officials found in an inmate’s cell in May 2021 describing the way in which an inmate could have a friend produce a piece of mail that looked like legal mail on “legal document paper,” spray it with “liquid meth,” and “have your peeps take it to your lawyer and send it in as legal mail.”
DeGenova said at that time “it was determined that drugs are often smuggled into penal institutions using this method.” So the current policy was created of opening an inmate’s legal mail in front of the inmate, copying it and giving the copy to the inmate.
She included a copy of the policy, which went into effect June 5, 2021, that states after the copy is given to the inmate, “the original legal mail shall be returned to the original envelope and sealed in a tamper-evident envelope with (jail) supervisor’s signature and date.”
The envelope is then placed in the inmate’s “property bag,” the policy states. “Supervisors shall avoid reading the contents of the legal mail,” it states, adding that “Care should be taken to maintain the confidentiality of the communication between the courts, attorneys and inmates and the timely delivery of all legal mail.”
The policy was modified March 14, 2022, to scan all inmate mail to the tablet computers inmates are allowed to use while incarcerated.
“The night-turn supervisor will continue to remove all legal mail and deliver it to the inmate” as stated in the June 2021 policy, it states.
DeGenova also said members of the sheriff’s office met with members of the Mahoning County Bar Association in 2023 to discuss the legal mail policy, including Juhasz. Copies of the policy were distributed. DeGenova also confirmed that Juhasz wrote to the sheriff’s office earlier this year about the policy. She provided a copy of the May 10, 2024, letter the prosecutor’s office sent in reply.
The letter, written by Linette Stratford, chief assistant prosecutor, states that the Mahoning County jail’s legal-mail-processing protocols “are authorized and consistent with Ohio Jail Standards and current 6th Circuit (Court) and other applicable federal case law.”
Greene and Capt. Ken Kountz spoke to The Vindicator by telephone, with Kountz saying the inmate-mail policies changed around 2021 because of the drug K2 being sprayed on mail being sent to inmates.
“Other jails have this as well,” Kountz said. “These inmates are so cunning that they make it look like legal mail” and have family members send it into the jail, he said.
“It’s our duty to stop any contraband from coming into the jail from the standards for jails in Ohio, so what we decided to do is we don’t scan the mail. We have a standalone printer that is on a table. We take it up (to the jail pods), and only supervisors can do this. We don’t want everybody, just the supervisors.
“They go up, they show the inmate the legal mail, they open it in front of them. They put it on the copy machine and copy it right in front of the inmate, and give them the copies. They take the legal mail that was sent in and they put that in a (tamper-free) evidence envelope, so you know when someone was fooling with it. They sign it with the date on it, and that goes into the inmate’s property.”
The original mail remains at the jail unless the inmate wants to release it to his or her attorney or family and stays there until the inmate is released or sent to prison or wherever, he said.
Greene said when asked about whether jail officials might look at inmate legal mail, “That’s why we ensured and put together a policy that only supervisors are to do this process, and they are not reading it. We are not allowed to read it. We are opening it up, looking for contraband and then making copies of it for them.”
Greene said the sheriff’s office got a written opinion from the county prosecutor’s office before implementing the inmate policy. DeGenova said she could not release that opinion to The Vindicator by Ohio law.
But DeGenova did cite a 2010 U.S. 6th Circuit Court ruling related to inmate mail in a case from Michigan in which the court ruled that an inmate’s rights were not violated when a prison guard whose last name is Vining allegedly read the legal mail of an inmate named Aubrey Stanley.
The reason it was not a violation was the inmate had “no First Amendment right that prevents a guard from opening his mail in his presence and reading it with an eye to determining if illegal conduct is afoot.”
Have an interesting story? Contact Ed Runyan by email at erunyan@vindy.com. Follow us on X, formerly Twitter, @TribToday.
Today's breaking news and more in your inbox
