Reynolds is also fighting a civil lawsuit that is intertwined with the criminal investigation. Reynolds asked Judge Dennis Langer to stay that case.
“The criminal proceeding arises from the same underlying facts as this civil action,” the motion reads. “Mr. Reynolds and Liberty Way Farms should not be saddled with the impossible burden of attempting to present their civil defense in a manner that protects Mr. Reynolds Fifth Amendment rights.”
That case was filed by 88-year-old Gerald Parks in September, who claims Reynolds interfered with several offers he had for his land in the area of Hamilton Mason Road for a competing development.
The civil lawsuit also accused Reynolds of taking agricultural tax breaks off Parks’ properties and a number of other allegations. Parks doesn’t want his case stalled.
“While the umbrella of Fifth Amendment guarantees is broad, the prohibition against compulsory testimony does not relieve Mr. Reynolds from appearing or answering questions in this civil action,” Parks’ attorney Milton S. Goff III wrote.
Citing similar cases, one decided by the Ohio Supreme Court, Langer issued his ruling Monday saying, “a stay is not justified by a judge’s concern that a civil defendant’s interest in not incriminating himself might preclude him from testifying in his own defense in the civil case.”
The civil trial is scheduled to begin June 5, 2023. Goff told the Journal-News “I would prefer not to comment on the case.” He is scheduled to depose Reynolds on March 22, according to court records.
Brad L. Tammaro, a special prosecutor from Ohio Attorney General Dave Yost’s office is prosecuting the criminal case. He filed a witness list that includes Parks, developers mentioned in the civil lawsuit and many Butler County and officials from Liberty and West Chester townships. AG’s office Press Secretary Steve Irwin said they cannot comment on the stay denial.
Charlie M. Rittgers, a criminal defense attorney and legal expert, said the judge’s decision isn’t good for Reynolds.
“If you don’t testify in the civil case you look guilty. By saying ‘hey I plead the Fifth,’ the plaintiff can say anything he wants and Reynolds can’t defend himself. That said, I would likely still recommend that he plead the Fifth in the civil case and not answer the civil lawyer’s questions because the criminal case is pending,” Rittgers said.
“Even though he’s obviously not going to say ‘I’m guilty,’ multiple lengthy statements will give the prosecutor the ability to take portions of the statements out of context and the ability to point to minor inconsistencies in an attempt to make Reynolds look guilty.”
Warren County Prosecutor David Fornshell, who was a civil litigator for many years, said based on his background on both sides of the fence “my preference on both sides of it would be that the civil case get stayed.” He said many “complications” can arise in both cases as a result of simultaneous court cases.
“It makes sense why defense council in the civil case would not want it to go forward, because you don’t want any more information out there or anybody being forced to testify when there’s still jeopardy hanging over your client,” Fornshell said. “On the plaintiff’s side you want to kind of put the screws to them and get them under oath and start getting some of that information out there.”
If Reynolds is found guilty in the criminal case, Fornshell said the civil jurors would not necessarily be told about the conviction.
“Where you have those kind of cases where there’s parts of it that are civil and parts of it that are criminal, and criminal case gets litigated first,” Fornshell said. “Once the civil case gets ready to go to trial there’s usually a pretty significant battle over what information, if any, related to the outcome of the criminal will be presented to the jury for their consideration during the civil trial.”
Liberty Twp. Trustee Tom Farrell was also pulled into the civil lawsuit over a campaign contribution Reynolds made. It alleges Reynolds donated $500 to Farrell’s re-election campaign in exchange for the trustee voting against the development proposed for Parks’ land.
The criminal case does not mention the campaign donation to Farrell.
He also asked the judge to pause the proceedings.
“Unfortunately, the recent indictment of Roger Reynolds threatens to obscure the truth — that there was no bribery or collusion amongst Farrell and Reynolds — by creating a cloud of silence over the discovery process,” the motion read.
“If Reynolds takes the Fifth Amendment throughout discovery in this case, as is expected if no stay is granted, then Reynolds likely must face the accompanying negative inference. However, if that negative inference is then imposed upon Trustee Farrell, it places him in an inequitable and unreasonable position: to have another party’s exercise of his constitutional rights transformed into ‘substantive’ evidence against him.”
Langer ruled against Farrell as well, saying his argument “is only a speculative possibility.” However if Reynolds’ pleads the Fifth and refuses to testify, he said he would “give a cautionary instruction to the jury not to apply such a negative inference to Mr. Farrell.”
Farrell’s attorney said they have no comment.
Reynolds has several attorneys representing him in these cases. The county covers the legal bills in the civil case for him in his capacity as the auditor, he has another lawyer representing him individually. The county paid about $15,000 from October through December — the deductible is $100,000 before the county’s insurance picks up the tab — but the auditor is on the hook for his criminal defense.
Reynolds is also in jeopardy of being suspended from office. The three-judge panel making that decision has until March 14 to come up with the preliminary decision. Reynolds can contest the decision if they decide to temporarily remove him.
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