Hamilton County prosecutors knew an assistant Cincinnati city solicitor was the foreman of the special grand jury that heard the case against police Lt. Col. Ron Twitty, but they say the law did not allow them to remove him from the panel.

        The only person who could have validly disqualified Stephen J. Fagel from this grand jury was Mr. Fagel himself, officials said Wednesday.

Lt. Col. Twitty

        “To have challenged his involvement would have violated the grand jury process. Randomness is important,” Hamilton County Prosecutor Mike Allen said. “There was no legal reason to disqualify him.”

        But Col. Twitty's attorney, Sharon Zealey, and Cincinnati Mayor Charlie Luken disagreed, saying Mr. Fagel's participation creates the appearance of a conflict of interest.

        “He's a lawyer for the city, and Lt. Col. Twitty is a police officer for the city. End of story,” the mayor said.

        Ms. Zealey, who said she found news of Mr. Fagel's role “very troubling,” said she hasn't decided if she'll petition to have Tuesday's indictment thrown out.

        Mr. Fagel is a 20-year veteran of the city's law department who started as an assistant criminal prosecutor and now works as a civil solicitor in the real estate division. He declined comment Wednesday.

        The jurors themselves picked Mr. Fagel as their foreman, the person who informs prosecutors of the jury's decision and signs the indictment. A nine-member grand jury — seven whites and two African-Americans — indicted the city's highest-ranking African-American police officer Tuesday on felony and misdemeanor charges for allegedly lying about and trying to cover up how his city-owned vehicle was damaged.

        If convicted of tampering with evidence and records, and lying to investigators, Col. Twitty could go to prison for more than 10 years.

        He has denied any wrongdoing, contending that the 2001 Ford Taurus was parked in front of his residence and was damaged while he slept by a hit-skip motorist early July 4.

        An arraignment has been scheduled for Friday before Hamilton County Common Pleas Judge Robert Kraft. Col. Twitty, who is free on his own recognizance, is not required to appear.

        Ms. Zealey said Mr. Fagel's involvement could be perceived as a conflict of interest, considering the great lengths the city of Cincinnati took to recuse itself from any investigation of Col. Twitty.

        After learning that officers questioned Col. Twitty's account of how the car was wrecked, Police Chief Tom Streicher turned the case over to the Hamilton County Sheriff's Department. The chief could not be reached for comment Wednesday.

        Nevertheless, Ms. Zealey said, “Now that we learn the grand jury foreperson was a city attorney — this is very significant. The foreperson is a leadership position, a very influential position. And when you have someone whose job it is to influence people, it's very troubling.”

        Mr. Fagel works two doors down from the city prosecutor who recommended that the police chief have sheriff's deputies investigate the case. Mr. Fagel told his boss, Solicitor Rita McNeil, that he disclosed his employment to county prosecutors and that they saw no conflict of interest.

        But that's not enough for Mr. Luken.

        “If Sharon Zealey's law partner were on that grand jury, that would appear to be a conflict of interest,” the mayor said. “My complaint isn't with Mike Allen, because I'm not getting into his business. But I think a solicitor should have done everything legally possible to get off that grand jury.

        “People are not going to understand all these nuances” Mr. Luken said. “We've got to be more careful about avoiding these kinds of things. We're going to be criticized enough without leading with our chin.”

        Mr. Luken said he's just as disappointed that Mr. Fagel appeared unrepentant when the mayor met with him Wednesday.

        “I said, "Did it occur to you that there might be a conflict of interest?' And he just laughed. I said, "Do you think this is funny?”'

        Ms. McNeil, on just her second day as city solicitor after being appointed by City Manager Valerie Lemmie, said she instructed Mr. Fagel on the public relations damage she thinks his actions had caused, and the perception that he had unfairly influenced the grand jury. But she also said she doesn't believe he did anything legally — or even ethically — wrong.

        “As attorneys, we're always taught that if you have a conflict, you disclose it. And if everyone's on notice and they don't object to it, it's OK.”

        Mr. Fagel would have had no more information about the case than anyone else reading the newspaper, Ms. McNeil said.

        There have been cases in which prosecutors disqualified a grand juror against his will, said Marge Koosed, a University of Akron law professor and member of the Ohio Bar Association's criminal justice committee.

        In one instance, prosecutors argued that a grand juror admitted he did not believe in drug laws. He was expelled because it was thought that if he didn't believe in drug laws, then he couldn't uphold them.

        State law says a grand juror can be removed by prosecutors if he is related to the victim, a witness or the defendant, or in some other way connected to the case.

        There is also a “catch-all” phrase contained in the statute that covers any other unforeseen situation.

        It says a person can be removed if found to be “otherwise unsuitable for any other cause to serve as a juror.”

        “I guess the question is, was there a conflict of interest?” Ms. Koosed said.

        Mr. Allen said grand jurors were asked if there was any reason they could not be fair or impartial to Col. Twitty.

        “No one raised a hand,” he said. “I'm more interested in following the law than people's perceptions.”

        Enquirer reporter Dan Horn contributed.

Prosecutors defend Twitty grand juror
Rules offer insights on grand jury
Deputy's wife reflects on job's danger
Fox interchange wins some help from ODOT
Fall fashion show put off
Hagan's a candidate with a plan
Hoods again allowed in city
Obituary: West side mourns W.J. Seitz
Sabin planners seek breather
School hopefuls coming
Six charged in attack on bus
Tristate A.M. Report
HOWARD: Some Good News
PULFER: Stalking Jungle Jim
RADEL: Something to cheer
Blanket-making teaches teamwork
Pisgah revitalization outlined
Drug charges revived after court decision
Sex offender sentenced to two years
Shooting hearing delayed
Thousands may return to Ohio welfare rolls
Twins battled each other, now ready for life apart
Birth-control change sought
Covington to help fund zone study
Driver rescued from car in creek
Elk roaming outside eastern Ky. fair game
FreshART to raise money, expectations
NKU spearheads drive to improve health
Scout's ouster has mom in knots
Sewer agency is writing rules
U.S. Senate honors top Little League baseball team