‘She should know better’: Response targets attorney suing Butler County prosecutor over handling of rape case

Butler County Prosecutor Mike Gmoser and Brad Burress listen to Judge Charles Pater during a pre-trial hearing in the Daniel French case, Friday, Oct. 9, 2015. GREG LYNCH / STAFF
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Butler County Prosecutor Mike Gmoser and Brad Burress listen to Judge Charles Pater during a pre-trial hearing in the Daniel French case, Friday, Oct. 9, 2015. GREG LYNCH / STAFF

Butler County Prosecutor Mike Gmoser is asking the Ohio Supreme Court to dismiss an action filed by a Cincinnati attorney and sanction her for “frivolous conduct.”

Jennifer Kinsley sued Gmoser in the high court last week saying he hijacked the rape case in which she is the victim, without judicial approval. Gmoser’s office was appointed special prosecutor at Hamilton County Prosecutor Joe Deters’ request.

Presiding Hamilton County Common Pleas Court Judge Charles Kubicki signed an order May 21. He appointed Assistant Butler County Prosecutor Brad Burress to handle the Aaron Roco case in which Kinsley is the alleged victim because “a conflict of interest does now exist making it inappropriate for the Office of the Hamilton County Prosecuting Attorney to continue in the prosecution.”

Gmoser asked the high court to dismiss the case on Tuesday, saying Kinsley has “used the complaint in this case to continue her efforts at forum shopping and her further efforts to undermine prosecutorial discretion in representation of the State of Ohio.”

Kinsley has accused Roco, a former client, of brutally raping her in 2012. She is unhappy with the plea that was negotiated by Burress, one she says is more lenient than an earlier plea deal. Roco would plead guilty to gross sexual imposition, a fourth degree felony, register as a Tier II sex offender, and be sentenced to community control with a condition that he complete the 6-month River City sex offender program.

Gmoser said he cannot ethically discuss the details of the rape case but in the motion to dismiss he noted the lead female detective on the case approves of the plea deal, “has stated to all concerned that she is in agreement with the proposed plea as a good and fair resolution of the case and in compliance with the interest of justice.”

Chief Assistant Prosecutor Dan Ferguson filed the motion to dismiss and asked the high court to make Kinsley pay attorneys fees and issue sanctions. He wrote that Kinsley, as an attorney, “should know better” than to have filed this action.

“As an attorney, she should be very aware that the recollections and emotions of a victim may not always match the provable evidence. As an attorney, (she) should further recognize that her efforts are an assault on the judicial and prosecutorial process,” Ferguson wrote.

“She should know better. As a result of these blatant breaches of protocol by a member of the bar, Respondent requests that this court consider sanctions against (her).”

Ferguson described Kinsley’s “forum shopping” saying she contacted the first judge in the Roco case, Hamilton County Common Pleas Court Judge Patrick Dinkelacker “asserting the claimed merits of her victimization and objection to plea negotiations” on her own, forcing the judge to recuse himself. The next assigned judge also recused because of a conflict.

The filing in the Supreme Court the prosecutors say is another attempt at forum shopping. Ferguson requested the high court remove them as special prosecutors and appoint Ohio Attorney General “as no other county prosecutor is likely to assume the duties of this case based on the Relator’s demands and abuse of the process before this Court.”

Kinsley would not comment on the request for sanctions or on the motion to dismiss but she did tell the Journal-News Gmoser had an obligation to tell her about the judge’s order giving him authority to try the rape case.

“The entry appointing Mr. Buress was filed in a separate case, unrelated to mine, under a different case number where it is difficult if not impossible to locate. I tried to find it. Repeatedly,” she said. “It is not my responsibility to go digging for information the prosecutors purposefully buried; rather, the Ohio Constitution requires them to provide that information to me and they failed to do that here.”

Gmoser said appointment of a special prosecutor is routinely filed as a separate record and all she had to do was pick up the phone.

“Just give me an apology and a dismissal, that would be what I would want from her but I don’t think I’m going to get that anytime soon, because of the perceptual defect that she has,” Gmoser said. “The bottom line is she didn’t look at the record, she didn’t know where to look for the record and she didn’t ask anybody about the record. Those are three things that she failed at.”