Hamilton County Prosecutor Mike Allen said Friday he is reluctantly going to use a second grand jury to prove that police Lt. Col. Ron Twitty has been and will be treated fairly.

        In an unusual move, Mr. Allen said he would present evidence to another grand jury in the wake of criticism that an assistant Cincinnati city solicitor should not have served on the grand jury that indicted Cincinnati's highest-ranking African-American police officer.

BORGMAN CARTOON

DEVELOPMENTS

What happened:    Hamilton County Prosecutor Mike Allen said he would seek dismissal of the indictments against Cincinnati Police Lt. Col. Ron Twitty accusing him of lying about how his city-issued car was damaged.    Mr. Allen said he is taking the action in the wake of criticism that an assistant city solicitor was foreman of the grand jury that indicted Col. Twitty.    Judge Robert Kraft will review the proceedings of the first grand jury to determine whether anything was done improperly. What it means:    The prosecutor's office will present evidence against Mr. Twitty to another grand jury of nine members and five alternates next week.    The police department postponed an administrative hearing against Col. Twitty, an assistant police chief. He remains on suspension with pay. What happens next:    The grand jury could indict on the same charges, two felonies and two misdemeanors; it could return different indictments; it could choose to return no indictment. If he is indicted again, he could be suspended without pay until his case is resolved.

        The second grand jury will begin proceedings even as the conduct of the first one is being reviewed — at the request of Mr. Allen — by a Hamilton County Common Pleas judge.

        “I can think of no other way to address the questions of the appearance of impropriety that have been erroneously reported in this case,” Mr. Allen said.

        “What is important at the end of the day is that the general public knows that the right thing was done. I seek to do the right thing, nothing more, nothing less.”

        Indictments returned Tuesday against the 52-year-old assistant chief, accusing him of lying about how his city-issued car was damaged, will be dismissed before the second grand jury renders its findings. But Mr. Allen said they would not be dismissed before Judge Robert Kraft decides on the validity of the first grand jury's proceedings.

        This newest development comes in the midst of accusations by city leaders and Col. Twitty's attorney, Sharon Zealey, that the indictments were tainted.

        During his announcement Friday, Mr. Allen continued to support the decision by the assistant city solicitor, Stephen J. Fagel, to sit on the grand jury.

        “That man answered a call (to serve jury duty) that a lot of people move mountains to get out of,” he said. “There was nothing wrong with that grand jury. Legally, we had no grounds to remove him.”

        Ms. Zealey said she was gratified by Mr. Allen's decision in the “misguided and tragic case.”

        “However,” she said, “we believe that the indictments never should've been sought in the first place.”

Zealey

Lt. Col. Twitty

        She said she continued to be “astounded that this conflict ... was not obvious from the very beginning.”

        City leaders, including Mayor Charlie Luken and Vice Mayor Alicia Reece, have complained that Mr. Fagel's involvement conjured up the perception of impropriety and created a conflict of interest.

        They said that because Mr. Fagel and Col. Twitty work for the same employer, Mr. Fagel should have avoided involvement in the proceedings altogether.

        Ms. Reece has called for disciplinary action against Mr. Fagel, even suggesting he be fired. A 20-year veteran, Mr. Fagel started as a city prosecutor and now works in the city's real estate division. He has declined comment.

        His boss, City Solicitor Rita McNeil, has said that Mr. Fagel did nothing legally or ethically wrong and that he informed county prosecutors of his employment. They found no conflict, she said.

        Mr. Allen cautioned city leaders to be careful because they could be opening themselves up for criminal and civil litigation.

        Ohio law prohibits employers from threatening employees with disciplinary action or termination if they submit to jury service. Such an act could be viewed as a form of retaliation, another violation of state statutes.

        On Friday, Ms. Reece would not repeat her earlier suggestions about Mr. Fagel's fate.

        “I don't know anything about that,” Ms. Reece said. “We're talking about two different jurisdictions. The county prosecutor doesn't run City Hall.

        “It's in the hands of the administration,” she said. “I'm pleased that Mike Allen reconsidered his position and decided to take this step. This is a step in the right direction, in restoring the confidence among our citizens in the system.”

        Mayor Luken said he stands behind his statements.

        “It's difficult for some people to understand how the city can say, on the one hand, that we don't want to have anything to do with the case, and at the same time, the city's lawyer is the foreman of the grand jury,” he said. “A lawyer with prosecutorial experience should know better.”

        Mr. Allen's decision to seek a second grand jury review is a tacit admission of that fact, Mr. Luken said. “He can characterize it however he wants to, but it didn't pass the smell test.”

        The Rev. Damon Lynch III, president of the Cincinnati Black United Front and critic of Mr. Allen for his handling of cases involving police use of force, said he was pleasantly surprised.

        “Clearly, the process reeked of impropriety, and I think he (Allen) was pressured into making the right choice.”

        The Rev. Mr. Lynch said that while tossing out the indictments is good, dismissing the case entirely would be better. He said he hopes the second grand jury would not indict Col. Twitty.

        Mr. Allen said he was confident the second grand jury would also indict Col. Twitty on similar charges.

        “He was confident when he indicted (other Cincinnati police officers) and they are walking around free today,” the Rev. Mr. Lynch said. “I don't place a lot of stock in Mike Allen's confidence.”

        Earlier Friday, before Mr. Allen said he'd dismiss the indictments, Ms. Zealey entered pleas of not guilty on behalf of Col. Twitty to felony counts of tampering with records and evidence, and misdemeanor falsification and obstruction.

        Judge Kraft, who is retiring from the bench at the end of the year, set a trial date of Dec. 9 on those charges.

        Col. Twitty is accused of lying about and trying to cover up how his department-issued 2001 Ford Taurus was wrecked July 4. It sustained more than $3,300 in damages.

        He has said a hit-skip motorist struck the car while it was parked in front of his Bond Hill residence.

        Cincinnati police turned the case over to the Hamilton County Sheriff's Department for further investigation. A special grand jury began reviewing evidence Aug. 26.

        Ms. Zealey said Col. Twitty is glad that the first charges would be dismissed, but is also “wanting to get this matter behind him. ... Once again, we hope that this does not cause another delay.”

        Col. Twitty has been suspended with pay since July. He'd been scheduled to attend an administrative disciplinary hearing Monday, but it was postponed because of Friday's announcement.

        Mr. Allen said the second grand jury, one already established, could begin reviewing evidence and hearing testimony as soon as Tuesday.

        He acknowledged that his decision is unusual and that a second review could result in a finding of no criminal wrongdoing. But he doubted that would be the case.

        “It's extremely frustrating. I have to accept whatever happens,” he said.

        Ms. Zealey said significant media attention on the case might make it difficult to get an impartial grand jury. After so much attention, “there's a certain orientation in the public's mind that a person has been charged.”

        Ms. Zealey said she wanted to clarify her role in the first indictment process, saying descriptions that the defense “participated” were “not entirely accurate. We suggested certain witnesses to be called.”

        Enquirer reporters Dan Horn, Kevin Aldridge, Gregory Kort, and Jane Prendergast contributed.

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Allen's decision lauded as wise
Black leaders relieved Twitty gets new jury
       

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