Ohio AG files suit against Erie County judge

SANDUSKY — Ohio Attorney General Dave Yost is suing Erie County Judge Tygh Tone for ordering the release of a man who claims to have been incarcerated illegally for seven years. The suit was filed against Tone in order to "correct a grave injustice that has occurred in the criminal court of Erie County," according to a court filing made by the attorney general's office. That injustice refers to Tone's release order for Dewitt McDonald Jr. Tone ordered the Sandusky native be released from a state prison in Richland County. McDonald, 57, was convicted of attempted murder in 1994 relating to the shooting death of Vivian Johnson, who was killed while sitting in a car on East Parish Street. McDonald has maintained he was not the shooter. He was ultimately tried, convicted and sentenced to life with parole eligibility in 20 years in the Erie County Court of Common Pleas in 1995. McDonald, to date, has never had a parole hearing. Tone agreed with McDonald's claims of being unlawfully detained and ordered McDonald be freed from prison. The judge granted a habeas corpus action previously filed by McDonald and ordered the state prison department to release him immediately. The attorney general's office appealed the ruling to a state appellate court, which granted an emergency motion halting Tone's order on April 1. McDonald's potential release will be decided at the end of the appeal effort Yost contends that Tone's court "exceeded its statutory authority and jurisdiction," according to court documents. Yost asserted the state needed to sue Tone "to correct a lower court's jurisdictionally unauthorized action." 'We've descended into lawlessness' McDonald's defense lawyer, Kim Corral, said Yost's suit against Tone is an extreme jurisdictional overstep on the state's behalf and argued that the state attorney general is trying to "bully" Tone into reversing course on his ruling. "It seems to be a flex of government power, the executive branch stepping over the authority of the judiciary branch," Corral said. Yost claims that Erie County does not have jurisdiction in McDonald's release because he's imprisoned in Richland County. However, when Corral submitted the habeas corpus that asked for McDonald's release, he was in the Erie County Jail. Corral claims this is a tactic by the state to prevent McDonald from defending himself. By burying Tone in a lawsuit and hopping all over jurisdictions, that puts off any actual ruling being made in McDonald's parole discrepancy. Corral said the appellate court fast-tracked its approval of Yost's motion to halt Tone's order, and did not give her enough time to argue on McDonald's behalf. "We've descended into lawlessness at this point," Corral said. "We were rapid-firing responses to make sure DeWitt's rights are protected. I've talked to numerous attorneys across the state who said they've never seen anything like this." Corral said that all these filings and extraneous lawsuits distract from the real issue at hand: McDonald's parole discrepancy. McDonald's original sentence granted him parole eligibility after 20 years — and, 10 years ago, his parole eligibility date was suddenly pushed back to 37 years. The attorney general's office has since argued in court for the 37-year sentence Despite the unexplained change in his prison records, McDonald's 20-year parole eligibility has been confirmed by Tone. He has been jailed for 27 years. She said due process is in McDonald's favor and the state is abusing power by denying him that due process. "The law is on the side of due process and (DeWitt) is on the side of due process," Corral said. "But the law favors people with power and privilege. The DeWitts of the world can be patient and do everything they are supposed to do and sit in prison but the Yosts are not held to that." The case is clear cut in Corral's eyes: A man was illegally denied a parole hearing for over seven years and should be released. But she said the state has continued to complicate this case. "They are muddying waters, and it makes it hard to see clear," Corral said. Questions sent to the attorney general's office Thursday, asking them to explain their position and their actions, were not answered. "Given the pending litigation in the Erie County Court of Common Pleas, the 6th Circuit Court of Appeals and the Ohio Supreme Court, we have no comment on this ongoing case," attorney general spokesman Steven Irwin said.