On March 19, 2009, at the end of a long day’s trial in the courtroom at the Portsmouth Municipal Building, Harald Daub was found by a jury of his peers not guilty of the misdemeanor of shoplifting. I want to focus on one aspect of the trial, an aspect which is embodied in the unusual phrase “magnitude of existence,” which Portsmouth police officer Jon Peters used to describe Daub. In his testimony, Officer Peters was asked by Daub’s attorney Richard M. Nash, if he knew who Daub was when he began the shoplifting investigation. Officer Peters admitted he did. When he was pressed by Nash to explain what it was he knew about Daub, Officer Peters replied he knew of Daub’s “magnitude of existence.” As original as it is cleverly imprecise and evasive, Peters’ bureaucratic phrase may be a key to understanding Daub’s trial. Peters resorted to bureaucratese, or the language of evasion, because he wanted to avoid saying, clearly, that Daub was a controversial public figure. If he had said that, Peters might then have been asked by Nash to explain why Daub was a controversial public figure. That could have opened up a can of worms, or a shopping bag of snakes, and the jurors would have learned not just about Daub’s alleged shoplifting but also about his long crusade against political corruption in Portsmouth. Hearing that, the jurors might have suspected the reason Daub was being prosecuted was not for shoplifting but for being a burr under the saddle of those who ride roughshod over citizens’ rights. Daub’s shoplifting trial should be seen, in part, as punishment for his criticism of city government and in particular of Mayor Kalb and of City Solicitor Jones.
The city wasted a great deal of time and taxpayer money in this trial in a futile effort to prove Daub a shoplifter. Although he has worked for thirty years at the A-Plant and testified he has never in his fifty-nine years had any run-ins with the law, Daub was charged with one of the pettiest of crimes. Petty crime or not, Jones made a federal case of it, bussing jurors over to Aldi’s, the alleged scene of the crime, as if this was trial over a murder or a million dollar heist. I have suggested in the past Portsmouth is ripe for reality television series. It rocks! The characters! The plot twists! A First Family worthy of Saturday Night Live!
Jones handled the trial with an ineptness that we are unfortunately getting accustomed to, showing legal skills that were at best rudimentary. Whatever he may have learned as a military lawyer does not seem to have carried over into civilian life. Like an earnest high school debater, he seemed to argue with the greatest conviction precisely at those moments in the trial when his argument was weakest. When the case was clearly slipping away from him, Jones became desperate, accusing Daub of calling Aldi employee Anita Sexton and Officer Peters, the prosecution’s only two witnesses, liars. Daub had not called them liars; he had disagreed with crucial parts of their testimony. But as Judge Kegley pointed out at the beginning and repeated at end of the trial in his instructions to the jury, people of good will can differ in their accounts of events without one or the other being a liar. Experiments prove that people who witness the same event can differ wildly in what they claim they have seen. Jones presumption that there are truth tellers and there are liars, and that’s all, greatly oversimplifies human psychology and seriously limits his effectiveness as a trial lawyer.
The Shopping Bag
Mayor Kalb and his wife have been chortling for months, as if Daub’s guilt was undeniable. Kalb even reportedly showed up at a recent City Council meeting carrying an Aldi’s shopping bag, apparently to call attention to Daub’s alleged shoplifting. An Aldi’s shopping bag became the chief exhibit at the trial, with both the prosecution and the defense debating how many stolen items it could hold and who was carrying it any given second. An Aldi’s shopping bag may live on in infamy, as the Marting building has, as an icon of Portsmouth’s corrupt political history. The bag has the slogan, “It’s all about saving green.” On the basis of Daub’s trial, it could read, “It’s all about screwing Harald Daub.” The testimony of Aldi’s employee Anita Sexton, which Daub’s attorney, effectively demolished, did not reflect well on her or Aldi’s. The possibility that she and her employer were in cahoots with the city is one of the conclusions that could be drawn from the trial of Harald Daub. The prosecution’s case was essentially over by the time Nash was done cross-examining Sexton. She has reportedly been courted by the city government ever since the alleged shoplifting at Aldi’s on December 20, 2008. She was treated like a celebrity by the Kalbs in the hours leading up to the trial, but attorney Nash argued during the trial that she is biased against Daub, whom she admitted she knew as a longtime customer at Aldi’s.
Daub’s drug-addicted nephew has a long criminal record. I saw a notarized statement he had made, confessing to the shoplifting but swearing that his uncle had not been a party to it. If having a drug-addicted nephew is a crime, how many uncles would escape hanging? If having a drug-addicted, drug-dealing son is a crime, Mayor Kalb and Police Chief Horner would be in a lot of trouble. There is no doubt Daub’s nephew was the only shoplifter at Aldi’s on December 20, 2008. The nephew has admitted as much and has already served a short sentence for the misdemeanor in the County Jail. But the crooked arm of the law was not after the nephew; it was after the uncle. Daub is the most hated and feared critic of the corrupt city government, of the Southern Ohio Growth Partnership, and of the rich white trash who control Portsmouth economically and politically. He has been a marked man ever since 1980, when he and several other city councilmen refused to go along with a shopping mall scam. (See my earlier posting, “The Mauling of Harold Daub.”)
The First Family
According to what I heard in the hallway before Daub’s trial, Allison Kalb, the Mayor’s wife, had previously got herself excused medically from serving on any jury because of her phobias, but her phobias did not prevent her on the day of the trial from hanging around the Municipal Building and sitting through the long trial, like a ghost in the attic. Before the trial began, she talked for long stretches with the Anita Sexton, the prosecution’s star witness, in the stairwell in the hallway outside courtroom and also in the mayor’s office, after Hizzoner returned from his Thursday morning gig punching a cash register at Kroger’s. In the weeks before and especially on the morning before the trial, Ms. Sexton was being lionized, from what I could see, by the Kalbs like a contestant on American Idol. I was not there when the “Not guilty” verdict was finally delivered, in the evening, but I was told before either of them could be asked their opinion on the verdict, Hizzoner and the First Lady bolted out of the courtroom like bats out of hell, with Jones not far behind. In my opinion, Jones is proving to be about as successful at winning cases as city solicitor as he is at selling donuts. There is about him a certain magnitude of incompetence, to coin a phrase.
Mayor Kalb parading across council chambers with an Aldi bag to hand something out of it to Solicitor Jones, who turned out to be the one left holding the bag in this farce.
The six videos dominated the trial and were played and referred to by Jones over and over again, but the videos were of such poor quality that they set the reputation of surveillance video back about a half century. I can remember seeing a neighbor’s home movies back in the 1940s that were technologically light years ahead of this stuff. The only thing the videos showed with any certainty was a shopping bag being taken from Aldi’s, but the video also shows that the bag was taken not by Daub but his nephew. Daub was charged with being an accessory to the nephew’s theft of the shopping bag! The theft of a shopping bag was all that was actually proved by the investigation and trial. Instead of being the smoking gun, or money shot, that Jones treated them as, the misnamed surveillance videos were a fusillade of fuzzy through-a-pool-of-water-home-video of events. The laser that Jones used to point to the screen on which the video was projected was like a scene from a Get Smart episode. “See here, Mr. Daub.” “See there, Mr. Daub.” “Is that you now appearing in the produce aisle, Mr. Daub?” I can recall in high school looking through a microscope at amoeba. That’s about how clear the shoppers at Aldi’s looked in the videos, like amoeba. Not only his mishandling of the trial itself but his decision to go ahead with the trial on the basis of such flimsy evidence seems terribly bad judgment on Jones’s part. Only a desperate desire to nail Daub, the city government’s enemy number one, can explain why the city solicitor showed such terrible judgment. Is this a lesson on what happens when the city government attempts to take down the man with the most “magnitude of existence” in Portsmouth?
In his closing argument, Jones urged the jurors to (a) review the surveillance videos during their deliberations and (b) to use their common sense. Given this particular case, he could not have used two worse arguments. What were the jurors going to see in the videos that he had not all already failed to find during the trial? And as for common sense, that was the defense’s, not the prosecution’s, best argument. Why would Daub, with a good job and close to retirement, with a loving wife and son, risk everything—his job, his reputation, his pension-- to shoplift a bag of whatever it was the prosecution had failed to prove was in the bag the nephew had left the store with? Daub testified that his nephew had put in the bag only a toaster, a six-pack of imported beer, and some miscellaneous candy and snacks. The prosecution claimed Daub and his nephew had shoplifted some hardware. What was the basis of this hardware charge? Aldi’s did an inventory some days after the alleged theft and had found those hardware items unaccounted for: they concluded, therefore, that’s what Daub and his nephew had shoplifted! On such flimsy circumstantial evidence, such harebrained logic, Jones dared to rest his case, saying that even if those pieces of hardware had not been stolen, the videos showed the bag had definitely been stolen and Daub was an accessory to that theft. Even if only a $1.99 dollar Aldi’s bag had been shoplifted, Jones solemnly told the jury, that was enough for them to find Daub guilty as an accessory. Even as I write this blog, I cannot believe the travesty of justice Jones attempted to perpetrate at the trial. Is this the result of his consorting with the likes of Jim Kalb and Mike Mearan? I actually feel sorry for Jones, because he is the one who is going to have to live with the humiliation of this trial for the rest of his life. At the end of the trial of Harald Daub, Jones was the one who was left holding the bag.
During his campaign for city solicitor, Jones had promised he would handle cases himself, and not hire outside lawyers, thus saving the city money. Jones is handling cases himself, as he promised. He mishandled the hearing about Chief Horner’s firing, and now he has mishandled the Daub case. As a result he is not saving but costing the city even more money. The money the city has blown on the Daub case may prove chump change compared to what Daub could sue the city for. If Daub does sue, I don’t think Jones will be handling that case. That would be sending good money after bad.