Gwinn's attorney accuses special prosecutor of smoke and mirrors

In the criminal case against Athens County Democratic Party chair Susan Gwinn, a special prosecutor is trying to whip up a semblance of guilt out of whole cloth, and using the courts to conduct a "œsmear campaign," according to her attorney.

Defense attorney Dennis W. McNamara maintained in a recent post-trial court filing that while special prosecutor Dave Yost may write eloquently about Gwinn's alleged guilt, "œverbose and fictitious argument cannot overcome a paucity of evidence, and it cannot subvert the truths of the facts established at trial. A dog remains a dog, no matter what words are used to call it a cat."

Gwinn's four-day trial in Athens County Common Pleas Court wrapped up late last month, and her fate is now in the hands of Judge William H. Wolff, Jr., who heard the case without a jury.

After investigation by Yost at the request of Athens County Prosecutor C. David Warren, Gwinn was indicted on counts of theft in office, unauthorized use of property, money laundering and falsification. Later two bribery charges were added.

The theft and property use charges alleged that Gwinn allowed Democratic Party funds to be applied to her law firm's advertising bills with a cable TV company.

The laundering and falsification charges alleged that she took $27,500 in donations from her brother and another man, applied most of the money to a political campaign in which she was running against Prosecutor Warren, and then failed to report the source of the money on her campaign finance report.

The bribery charges related to an offer Gwinn reportedly made to members of the Ohio University College Democrats, that the party would pay $5 apiece for every early voter they brought to the polls.

Wolff threw these charges out, finding that one of the statutes under which Gwinn was charged was so vague as to be meaningless, and that under the other, he didn't see that she had done anything illegal.

Regarding the theft-related charges, Gwinn has testified that any misapplication of party money to her law firm's bills was a mistake by Time Warner Communications, which provided her with invoices so hopelessly complex, she couldn't unravel who owed what. (She often used her law firm account with the cable company to secure ad time in advance for party candidates.)

In a post-trial brief, Yost called this claim a sham, suggesting that as a sophisticated, long-time customer of Time Warner's, Gwinn could have deciphered the bills with ease.

In a reply brief, McNamara has pointed out instances in which Time Warner officials acknowledged that there was "confusion" in the billing; that a Gwinn Law ad mistakenly ran in a political time slot; and that the company had made the mistake.

Yost has also attempted to suggest that Gwinn was under money pressure, as she was about to launch her attempt to unseat Warren, and "she had to have cable television ads, and had to clear up her bills from the fall of 2007."

McNamara called this "simply false." Not only could Gwinn have run political ads in other media than cable TV, he argued, at the time she was a "long-term, valued customer of Time Warner," who had established credit with the company.

"She did not have to 'clear up her bills' in order to place ads with Time Warner," he wrote.

Yost has claimed Gwinn owed Time Warner $9,500 at the time she filed her candidate petition. Not true, according to McNamara.

According to one trial exhibit, he noted, at that time the party owed Time Warner about $2,500 and Gwinn owed around $1,500 "“ assuming this record is accurate. "Even now we don't know for sure," because of the confusion in the bills, McNamara wrote.

McNamara also called deceptive Yost's attempt to suggest Gwinn was in dire financial straits at the end of 2007, to show some sort of motive for her to misuse party money.

After obtaining about three-and-a-half years worth of accounts from Gwinn's law firm, McNamara wrote, Yost put together a document "focused on the most unrepresentative 13-month segment that could be found" to make it look like Gwinn was short of money.

Though these months showed average gross receipts of $18,600 per month, McNamara pointed out, the two months just before the 13-month period, January and February 2007, had combined receipts of well over $142,000. The months after the period looked at by Yost "“ starting with April 2008 "“ also had to be left out, McNamara suggested, because each showed gross receipts ranging from $20,000 to $35,000.

Other dishonest number-juggling by Yost, according to McNamara, includes a claim that the records show Gwinn's firm had a net loss of nearly $27,000 during the 13-month period, a claim "that is simply not true." Most of the more than $268,000 during this period described as "outgo" from Gwinn's firm was her own salary or profit, he wrote.

Yost says it's "irrefuted" that Gwinn used party property, the only question being whether she did so knowingly.

Once again, replied McNamara, "saying it so does not make it so." Witnesses who refuted this claim, he wrote, include Democratic Party Treasurer Lenny Eliason, two Time Warner officials, and Gwinn herself. "What the prosecution describes as 'irrefuted' was probably the most contested single issue in this case," he added.

Yost has claimed Gwinn didn't tell her secretary and campaign treasurer the source of the $27,500 for her campaign. McNamara noted that Yost interviewed the treasurer, Sherry Coon, but never called her as a witness.

The basis for the money laundering charge is that Gwinn had her brother make "structured purchases" of money orders, in amounts low enough to avoid federal reporting requirements, in order to keep their source a secret.

Even if Daniel Gwinn knowingly "structured" his purchases, however, this offense would apply only to him, not his sister, "since he made the money-order purchases without (Susan Gwinn's) knowledge," according to McNamara.

The point to remember, the defense attorney maintained, is that any money that belonged to Susan Gwinn, rather than to her campaign "“ whether that money came from a law firm client, from her brother, "from the sale of a used car, from prior wages held in an IRA or a deferred compensation account, or from a lottery ticket is not important. Once it became Susan Gwinn's money, it was hers to use in any manner she saw fit, including a primary campaign for political office."

McNamara concluded that the case against Gwinn is "“ as Yost has labeled Gwinn's testimony "“ "smoke and mirrors," which doesn't come close to proving criminal wrongdoing by Gwinn.

"There was nothing to justify the hundreds of hours and tens of thousands of dollars worth of government resources that have been expended in this investigation and prosecution," he alleged.