Marianna Bettman

Marianna Bettman

One last column of previews from the Supreme Court of Ohio, which has just started to release some merit decisions which I will look at next month.

First, let’s look at the issue of restitution. Restitution is payment ordered by a court from the perpetrator of the crime to the victim of a crime, for economic loss suffered by the victim. Ohio has a restitution statute which says: “Financial sanctions that may be imposed pursuant to this section include, but are not limited to . . . restitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss.” The case of State v. Zachary Allen put this issue in an interesting context.

In July 2016, Zachary Allen went to several banks in the Columbus area and cashed forged checks made payable to himself. The Franklin County Grand Jury indicted Allen with seven counts of forgery and seven counts of possession of criminal tools. Allen pleaded guilty to the forgery charges and the rest of the charges were dismissed.

At his sentencing in March 2017, the trial judge ordered Allen to pay restitution to the banks that cashed the checks for the amounts paid on those forged checks. The court of appeals disagreed, finding the banks to be third parties, not “victims” within the meaning of Ohio’s restitution statute. That is the issue that went to the Ohio high court. 

The state argued that when banks cash a forged check, the banks are entitled to restitution from the offender because the banks are the object of the offense and suffer an economic loss from it, because the banks have lost the right to make money from their possessory interest in their customers’ deposits, and because they are required to repay their customer accounts for any checks paid that are not properly payable. The state also argued there can be more than one victim of an offense.

Allen argued that the banks are not victims here because they are not the objects of the offense, nor were they named in the indictment. They were simply third parties, not entitled to restitution. The account holders are the victims in this

situation. 

The other preview is an intriguing defamation case, involving a robbery at a Columbus waterpark in which unknown suspects pointed a gun at an 8-year-old girl and stole her hoverboard. The Columbus Police Department emailed a media information sheet to news organizations detailing the robbery. The media information sheet was accompanied by two photographs. One showed an empty parking lot with several grainy images standing together. The other clearly shows two males and a female, later identified as the Andersons, walking down a hall. The media information sheet refers to the persons in the photographs only as persons who may have been involved in the crime.

WBNS-TV put together a news broadcast and a web-based story about this incident. WBNS relied on the media information sheet in preparing its broadcast, but rewrote the story. The broadcast showed the photographs and referred to those involved at different points as robbers and suspects. The web story and Facebook post included the photographs and a bold-font headline, “Robbers Put Gun To Child’s Head And Steal Hoverboard.”

Nanita Anderson saw the broadcast, and recognized her children. She and her husband immediately went with their children to police headquarters where they were cleared of the accusations. The police informed WBNS that the Andersons were no longer considered suspects. WBNS then removed the photos from its broadcast, Facebook page, and website. However, WBNS refused to provide a retraction of any sort. The Anderson family sued WBNS for defamation.

Defamation cases are hard to win, because we like to give the media a lot of wiggle room in a free society. Defamation cases are especially difficult if the person claiming to be defamed is a public figure; in those cases a public figure must prove that the media acted with actual malice. But when the persons claiming to be defamed are private citizens like the Andersons, the proof required is not so stringent – proof of simple negligence by the media will suffice. In this case, the trial court found in favor of the TV station as a matter of law, but the appeals court in Franklin County reversed that decision, holding that a jury should decide whether broadcasting an accusation that the Andersons were robbers without investigation, and based on a set of police documents which claimed only that some of the Andersons were suspects, was enough to let a jury decide if there was negligence by the station. The appeals court also wrote a line in its decision suggesting the media has a stronger duty to investigate facts in the internet era when “false stories on the internet do not just disappear because the truth is later discovered.” That sentence caused quite a stir at the oral argument at the Supreme Court of Ohio. 

WBNS argued that it had every right to rely on the media information sheet, did rely on that sheet, and accurately reported that the three individuals in the photograph were just suspects. The station also argued that there should not be a different standard for the media in the internet era than before.

The Andersons argued that WBNS falsely accused the Andersons of committing the armed robbery of a child at gunpoint. The station took one surveillance image of the Andersons, broadcast it, and stated Columbus police hope you recognize these two men who robbed an 8-year-old girl at gunpoint. It was WBNS which created the defamatory accusation of guilt, not the media information sheet. The Columbus Police were not wrong. They accurately reported the information they had at the time. The station made up facts and did nothing to investigate its newly created false facts accusing the Andersons of armed robbery. A jury should decide the station’s culpability here.

Stay tuned for answers in both cases.

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