Kobly is witness in hearing, Gains says

To prove the sheriff didn't get all the paperwork, the sender must be identified, Gains said.
By DEBORA SHAULIS
VINDICATOR STAFF WRITER
YOUNGSTOWN -- Youngstown Municipal Court Judge Elizabeth A. Kobly must disqualify herself from presiding over county Sheriff Randall Wellington's civil contempt hearing because she is a witness in the matter, Mahoning County Prosecutor Paul J. Gains says.
"Certainly, even if Judge Kobly is not actually biased or prejudiced against Sheriff Wellington, there is no question that a judge cannot serve in the dual capacity of witness and trier of fact at the same proceeding without presenting the appearance of bias and/or prejudice," Gains wrote in an affidavit of disqualification he filed Monday in Youngstown Municipal Court.
Kobly ordered Wellington to attend a show-cause hearing to explain why Ronald A. Tomlin, 19, of Hudson Avenue, was released early from his seven-day jail sentence when the judge wanted him to remain locked up.
Tomlin was convicted of domestic violence and sentenced Nov. 29 by Judge Kobly. The judge's journal entry took up both sides of one page, with a handwritten note on the back that read: "Sheriff not to release early."
What sheriff said
Wellington says jail personnel received only the first page and not the page with the judge's notation. Tomlin was released from jail Nov. 29 under a plan by common pleas judges to comply with a federal mandate that, in part, limits jail population to 296. Tomlin would have been ordered to complete his sentence later. Wellington ordered deputies to find Tomlin, who was arrested Nov. 30.
The hearing is to determine whether the sheriff should be held in contempt of court.
"To prove that Sheriff Wellington never received Judge Kobly's 'Do Not Release' order, Sheriff Wellington must determine who faxed the order to the sheriff's department. And the only way to prove the sender's identity is to establish a chain of custody, beginning with Judge Kobly and ending with the sender," Gains wrote.
Judge Kobly's bailiff and secretary also are witnesses because of their involvement in transmitting the journal entry, directly or indirectly, to the sheriff's department, according to the affidavit.
Sheriff's department employees will testify that Judge Kobly's 'Do Not Release' order was not in Tomlin's court file, which was delivered by Youngstown police officers, Gains wrote.
The matter has been referred to Mahoning County Juvenile Court Judge Theresa A. Dellick, who is presiding judge of common pleas court. It is not known when Dellick will make her ruling.
Likely scenario
If Judge Dellick grants Gains' motion, a visiting judge will be appointed to hear the case, Gains said. If the judge denies the motion, the issue is still moot to Gains; the sheriff purged himself of the contempt citation once Tomlin was returned to jail, he said.
"I have an obligation to represent my clients," Gains said Thursday.
"If that's namby pamby, then I confess that I am a namby-pamby," Gains also said, responding to a Vindicator editorial that criticized his initial response to Tomlin's release.
The show-cause hearing originally was scheduled for next Monday but has been rescheduled because Gains must meet with U.S. District Court Judge David Dowd, who declared the county jail to be unconstitutional and whose directives led to the inmate population limit. The new hearing date is Dec. 28.
shaulis@vindy.com