TO: Max Rothal, Director of Law, City of Akron

FROM: Frederic L. Zuch, Independent Counsel

REFERENCE: Akron Police Chief Edward D. Irvine-Allegations of Domestic Violence

DATE: July 14,1999

At the outset I will reiterate two issues we discussed prior to my being retained by the City of Akron. During the early 1970s, while I was an Akron police officer, (Sgt.) Irvine was my patrol supervisor, on occasion. Chief Irvine and I also have had infrequent and brief contacts over the years on matters of mutual concern to the police department and the county prosecutor's office. It was also important for me to disclose that I had formed an opinion about an outside investigation, based on the amount of publicity concerning the domestic violence allegations against Chief Irvine. As I indicated to you, it was my opinion that the appearance of impropriety could not be eliminated without the involvement of outside investigators at some point during the investigation.

Though not discussed, it should be noted for this report that I have also had some limited police/prosecutor contact with Officer Pierre Irvine, Chief Irvine's son. To the best of my knowledge, however, I have had no contact with Geneva Irvine, the chief's wife, other than a brief phone conversation during this inquiry.

The review process and this report consist of two phases. The first phase follows the standard prosecutor's procedure of reviewing police reports at face value and making a traditional charging decision. The second phase will go behind the reports and be a review of the internal investigation process, a search for additional evidence, and an analysis of legal issues. I will conclude with an opinion on prosecution based on the current state of the evidence.

My normal practice for making a prosecution decision requested by a law enforcement agency is as follows:

1. Review the reports of investigation;

2. Request additional paperwork and/or investigation, if necessary;

3. Confer with the primary investigators, if necessary.

After reviewing the reports of investigation that you provided in this case, I would not have requested any further paperwork or investigation. I would, however, have requested a conference with the primary investigating officers.

On May 25, 1999, I met with Lt. Elizabeth Daugherty, Lt. Paul Calvaruso, and Sgt. Charles Brown of the Akron Police Department. Also attending this meeting were Sheriff Warren and designated members of his department. While I used part of this meeting to review the initial prosecution determination process as outlined (Phase I), we also used this meeting to review and copy the original Akron internal affairs file for the independent review process (Phase II).

While I was a prosecutor, I did not have extensive contact with Lt. Calvaruso, Lt. Daugherty, or Sgt. Brown. My limited prior work with each officer did, however, demonstrate his or her professionalism and competence. In this case, their report and responses at our meeting were appropriate and direct. It is also important to note that Mayor Plusquellic, after being advised that the police department received additional information after the first investigation was closed, ordered the investigation reopened and subsequently assigned Lt. Ed Duvall, Jr. to assist the internal affairs officers. I have worked extensively with Lt. Duvall. Lt. Duvall and his former partner, Helmut Klemm, have successfully investigated many powerful public figures, and in my opinion set the standard for aggressive, fearless, and professional criminal investigations. I have consulted both of these investigators many times over the years for input and advice.

The record of Akron's Internal Affairs Unit since it was created in 1992 is impressive. This unit has successfully investigated criminal activity by police officers up to and including a deputy chief. The unit was also directly involved in the investigation of a police captain that resulted in a conviction for aggravated murder. The investigators in this unit obviously are experienced in cases where they are outranked by the officers they are investigating.

Based on the background information outlined above, it is my opinion that these internal affairs officers have the experience, integrity, and competence to effectively investigate the police chief. This process, however, had to be awkward and difficult. Having the Internal Affairs Unit report directly to Deputy Mayor George Romanoski during the second investigation was a more appropriate chain of command and should have eased some of the problems. Deputy Mayor Romanoski is the immediate supervisor of Chief Irvine.

Considering the officers involved, and taking the reports of investigation at face value, I concur with the investigating officers' conclusion that the allegation of domestic violence against Chief Irvine is unsubstantiated. By using the term unsubstantiated, the officers mean that it cannot be determined whether or not the offense occurred. I also agree with the Akron Law Department's decision, based on the available information, not to prosecute Chief Irvine.

On May 21, 1999, I met with Summit County Sheriff Richard L. Warren to determine how our review and supplemental investigation of the domestic violence allegation against Akron Police Chief Edward D. Irvine would proceed. At that time Sheriff Warren assigned the following sheriff's personnel to this case:

Chief David Bailey (responsible for all law enforcement operations)
Inspector Tim Wilmoth (second-in-charge under Chief Bailey)
Captain Jeff Mashburn (in charge of investigations)
Sergeant Jennifer Limbert (supervisor in detective bureau)

Sheriff Warren, the above listed officers, and I met on a weekly basis to review our progress and make investigation decisions. It should be noted that Inspector Wilmoth is the former Mogadore Police Chief Capt. Mashburn was previously assigned to Internal Affairs and still does internal investigations for Sheriff Warren. Capt. Mashburn is also an OPOTA certified domestic violence instructor.

Sheriff Warren designated Capt. Mashburn and Sgt. Limbert as the primary investigators. During the course of this inquiry, 36 interviews were conducted. These interviews are documented by a summary in the sheriff s investigation package and will be released pursuant to the Ohio Revised Code. In a few instances, I used information from interviews that was not part of the investigator's summary. All information in this report, however, was verified by the investigators for accuracy. On occasion, I also contacted individuals we had previously interviewed to clarify points of information. The sheriff s investigators and I did not use tape recorders during the course of this investigation. Sheriff Warren and I agree that all relevant and reasonable areas of inquiry have been completed.

I realize that you clearly understand many, if not all, of the issues that I will discuss. Because I anticipate, however, that others will read this report, I will provide details and some citations to my analysis. I have also attempted to anticipate issues that would be raised by competent defense counsel if a prosecution occurred.

Our inquiry focus was on the domestic violence allegations of October 14, 1998, and the City of Akron investigation that followed. We approached this case as a misdemeanor investigation, with the understanding that our inquiry would be much more extensive than a normal misdemeanor case. Felony investigations generally absorb most of the investigatory resources of law enforcement agencies in our area. Misdemeanors are also subject to some statutory limitations regarding investigations. In the event that our investigation uncovered felony activity, our approach would have been modified.

Misdemeanor Restrictions/Procedures Relevant to this Case

R.C. 2935.23 restricts investigatory subpoenas to situations where police officers can represent that a felony has been committed. Assuming, for the sake of argument, that a crime was committed in this case, it would be classified as a misdemeanor pursuant to R.C. 2919.25, Therefore, records cannot be subpoenaed in this investigation and witnesses cannot be compelled to give information. This process should not be confused with subpoena power once the filing of a criminal complaint has commenced a misdemeanor prosecution. At that point subpoenas can be issued under the authority of the court.

A criminal complaint is signed before or immediately after an arrest to commence a prosecution. In felony cases, police officers can make arrests, without a warrant, based on reasonable grounds and can sign a complaint without being a witness to the offense. R.C. 2935.04, R.C. 2935.06. In misdemeanor cases, a victim or witness normally signs complaints. Unless a specific statutory exception applies, police officers are not permitted to make a misdemeanor arrest without a warrant (based on a complaint) unless they witness the offense. R.C. 2935.03. A domestic violence situation is one of several exceptions and will be discussed below.

Medical personnel are also under different statutory reporting mandates for specified felonies and misdemeanors. There is no requirement that the police be notified by hospitals in cases of suspected domestic violence without serious physical harm. R.C. 2921.22.

Preferred Arrest Issues

In response to the difficult problems that surround domestic violence prosecutions, the Ohio Legislature has defined specific situations where police officers can arrest an alleged domestic violence offender without a warrant, and without a witness or victim signing a complaint, R.C 2935.03(B)(3)(a), R.C. 2935.05. Officers can now make an arrest based on the statements of a victim or witness. Police officers can also use their own knowledge, observations and other information to conclude that reasonable grounds exist to establish that a domestic violence offense has occurred and that a specific person committed the offense. When the conclusion of reasonable grounds is made, an arrest is the preferred course of action. If officers do not make an arrest when reasonable grounds are present, they must explain in writing why the arrest did not occur.

In my opinion the above legislation was designed to encourage police officers, who respond to the scene of a domestic violence incident, to arrest offenders so that potentially dangerous situations can be temporarily controlled. This legislation also intended that these types of cases be brought before the court for sanctions or intervention, assuming a case can be proven. The statute also provides the victim with a degree of protection. When pressured by the offending spouse to "drop the charges", the victim can assert that she/he is not in control of the prosecution.

Concerning the case involving Mrs. Irvine, Officer Lilly responded to a hospital notification 12 to 14 hours after the alleged domestic violence occurred. He had no direct statement from a victim or witness and had no scene to evaluate. His only observation consisted of a bruised leg that the "victim" attributed to a fall. Officer Lilly's only information of domestic violence consisted of statements to hospital personnel indicating that Mrs. Irvine originally indicated an assault by her husband. In my opinion, these facts do not constitute a preferred arrest situation as defined by the Ohio Revised Code. Therefore, no report was required to explain why an arrest did not occur, and this case should have been handled as any other potential misdemeanor. Based on the information given to Officer Lilly, an arrest should have only occurred in the unlikely event the victim or a witness elected to sign a complaint.

Tom Dicaudo confirmed for us that he was the police legal advisor who took the calls from Officer Lilly and Sgt. Caprez concerning allegations of domestic violence against Chief Irvine. PLA Dicaudo emphasized that the officers did not tell him that the incident allegedly involved Chief Irvine until after he had repeated his advice for the second time. Based on the information he was given, he advised both Officer Lilly and Sgt. Caprez that there was no case to prosecute. Officer Lilly told the sheriff's detectives that while PLA Dicaudo said there was technical probable cause, he also indicated that there was no chance of winning the case. It should also be noted that when an Akron police officer is the possible subject of a domestic violence complaint, Policy and Procedure P-97-011 requires a supervisor be called to monitor legal compliance. While we did not re-interview Sgt. Caprez, his report indicates that PLA Dicaudo recommended directly to him that a charge not be signed.

Hospital Issues

To Dr. Schuckman's credit, he reported Mrs. Irvine's statements to the police department even though he was not required to do so under Ohio law. His only obligation was to make a notation on the medical records. Dr. Schuckman also agreed to be listed on the police report that was made by Officer Lilly as the reporting party.

If a prosecution were commenced in this case by a criminal complaint signed by anyone other than Mrs. Irvine or a witness, I would anticipate a defense motion to dismiss the case based on privileged information being improperly released and subsequently utilized by the police. The defense would argue that under a normal situation the police would never have been notified and there would have been no police report filed. While this is a legitimate issue, I would anticipate that the prosecution would be allowed to proceed because the release of the information was not actually prohibited by the Ohio Revised Code.

The hearsay statements concerning the abuse, made by Mrs. Irvine to the receptionist, nurse, and doctor, for the purpose of medical treatment, would probably be admissible as evidence. Evid. R. 803(4). The statement to the doctor may, however, be blocked not by hearsay, but by privilege. R.C. 2317.02(B)(1). Since the privilege does not apply to other hospital personnel, I anticipate that the nurse and receptionist could testify to the abuse statements.

Dr. Schuckman's probable notations on the medical records, concerning suspected abuse, would be admissible pursuant to R.C. 2921.22(F)(2). Dr. Schuckman could directly testify about his observations concerning Mrs. Irvine's leg injury. This has limited value, however, since he has indicated to us that even though the injury is consistent with an assault, he cannot offer a medical opinion to differentiate between an assault or a fall.

Incident Report Filing Issues

The incident/offense report utilized by the Akron Police Department is a multi-copy form completed by an Akron officer when criminal activity is discovered or an individual or agency reports criminal activity. Even when the incident being reported may not constitute criminal activity, officers are encouraged to take a report if requested by a citizen. These reports are collected at the end of each patrol/traffic shift and forwarded to the police department's information desk. The top or white copy is forwarded to the record room. The yellow copy is forwarded to the detective bureau. The Pink copy at the time of the Irvine incident was being forwarded to the traffic counter.

The pink copy is made available, on a weekday basis, to the public, media, and service agencies. Copies of these reports can also be obtained from the record room. If a suspect is listed on the report and no arrest has been made, the suspect's name is redacted from the reports, which are available to the public.

Ed Duvall explained to us that the Internal Affairs Unit, since its inception in 1992, has altered the above incident-report process when a case is referred for an internal investigation. If IAU receives the incident report before it has reached the information desk, the report with copies attached is held until the investigation is completed. The report is then forwarded to the record room or information desk for dispersion and access. The primary purpose of this internal policy is to avoid restrictions on investigation options that would occur if allegations were made public. The secondary reason is for internal rumor control until the investigation can be completed. In the event the report was dispersed before IAU received the case, the record room report and dispersed copies are not pulled.

In this case, the process of the holding the intact incident report until the end of the investigation was apparently not unusual. The fact that the report was not filed after the first investigation was completed (10/29/98) was unusual. The IAU officers explained that they did not realize the original incident report was not filed until it was discovered in their files after they were well into the second investigation. They indicated to us that at that point they notified you and Deputy Mayor Romanoski, and the incident report was given to the record room supervisor on December 2, 1998. We verified this process through you, the deputy mayor, and the record room supervisor. We have no reason to doubt IAU's explanation. The IAU officers were under the impression, from information supplied by Chief Irvine, that the newspaper was aware of the incident. Therefore, it is not logical to conclude that the report was held to avoid publicity.

Holding the incident report in the Irvine case has generated two criticisms. The first concerns the Battered Woman's Shelter's inability to provide support for Mrs. Irvine because there was no incident report to trigger their support process. The second criticism involves the problem that the media would not be aware of the incident because they also monitor the public incident reports.

The Battered Woman's Shelter provides services to victims of domestic violence. We interviewed Terri Heckman (Executive Director) and Kammy Taylor (Court Services Coordinator) regarding BWS's procedures. Kammy Taylor advised that they attempt to contact every victim, in cases where an arrest has occurred, to offer support, services and encouragement. She indicated that there are many domestic violence incident reports where there are no arrests. Because of volume, they do not make contact in these cases. Ms. Taylor indicated that even if the incident report had been filed immediately in the Irvine case, they would not have made contact because there was no arrest. Based on this information, the criticism is unfounded.

Although BWS serves many jurisdictions, Akron is the largest jurisdiction regarding domestic violence cases. APD record room statistics indicate that during 1998, there were 2,835 incident reports listed as domestic violence. Regarding those reports, there were 1,561 arrests.

The second area of criticism regarding the holding of incident reports is media monitoring. In my opinion, the holding of an incident report until an internal investigation is completed is reasonable. While this process would be crucial to some investigations, it may not be as important to others. Also, officers under investigation may be cleared when the facts are developed and should not be subjected to internal rumors or publicity in the event no charges are filed. The issue of minimizing publicity during internal investigations is covered in the FOP labor contract (Article VIII).

In the Irvine case, the incident report should have been filed as soon as the first investigation was completed (10/29/98) according to IAU practices. Since the report was not timely filed, the criticism in this regard is justified.

Issues Relating to Battered Woman Syndrome

I explored the concept of using the Battered Woman Syndrome as evidence in this case. In theory, the syndrome would explain why Mrs. Irvine recanted her hospital statement, made no allegation of abuse to Officer Lilly, and continues to not cooperate in this investigation.

The first step is to establish that Mrs. Irvine does in fact fit the syndrome. Personnel at the Battered Woman's Shelter and the Domestic Violence Unit of APD have indicated to me that Mrs. Irvine appears to fit the syndrome. The sheriff s investigators working on this case also share this opinion. I also asked this same group whether they could recall any case where there was an arrest and the victim did not at least make a verbal statement alleging abuse directly to a police officer before the recantation occurred. No one could recall such a case. While I am sure that there are other cases, with independent evidence, where there was an arrest without some type of direct victim complaint to a police officer, it apparently is not the norm for domestic violence victims in prosecutions in our area. This distinction may only relate to arrest and prosecution choices and have nothing to do with the syndrome. Criminal defense counsel would, however, use any distinction to attack Mrs. Irvine's inclusion in the syndrome group. The fact that Mrs. Irvine's allegations are against the police chief is the more likely explanation as to why she did not complain to a police officer who works for her husband. Defense counsel would counter this argument by contending that Mrs. Irvine did not complain directly to a police officer because she did not want to be prosecuted for falsification. R.C. 2921.13.

Using the syndrome is not a good prosecution option without seriously consulting with mental health experts, and/or having Mrs. Irvine examined (unlikely). Furthermore, for the reasons stated below, I did not pursue the syndrome issue further.

Akron University Law School Professor Dean Carro and Senior Assistant Summit County Prosecutor Phil Bogdanoff work extensively with Ohio criminal law. Both of these attorneys have advised me that in their opinion Ohio courts will eventually allow the battered woman syndrome to be used by the prosecution in criminal cases. As indicated, the syndrome would provide an explanation for a jury regarding recantation. Currently, however, the syndrome is permitted only during the criminal defense side of a prosecution to establish imminence in self-defense cases.

Mrs. Irvine's Allegations of Abuse to Third Parties (Other Than Hospital Personnel)

Six women have indicated that Mrs. Irvine has told them that she has been abused by her husband. These women also have told investigators that they also have observed bruises on Mrs. Irvine. This information covers a substantial time period. Mrs. Irvine may have given other individuals similar information.

I have reviewed cases that apply or interpret Evid. R. 803(l), 803(2), and 803(3) and cannot find any hearsay exception that would apply to this information regarding abuse. Observations concerning the leg injury after the incident on October 14, 1998, would probably be admissible. This has limited value since the leg injury is not in dispute. Any statement regarding the cause of the injury would not be permitted. Some of these witnesses may also be able to testify concerning Mrs. Irvine's state of mind, e.g. fear, as long as there is no hearsay statement regarding what caused the state of mind.

Interviewing Neighbors

Deputy Mayor Romanoski discouraged the internal affairs investigators from approaching the Irvines' neighbors during the investigation. I agree with this advice.

Talking to neighbors in a case that involves an uncharged misdemeanor creates a significant intrusion, in comparison to the degree of the alleged offense. Police officers asking questions about domestic violence, absent a previous neighborhood call or complaint, damages reputation without the likelihood of a law enforcement benefit.

Because of the significant publicity in this case after the completion of both IAU investigations, damage to reputation is probably no longer a factor. Therefore, I agreed to have the sheriff's investigators approach the neighbors. No relevant information was obtained from the interviews of the neighbors.

Geneva Irvine's Contacts with the Police Department

Each of Mrs. Irvine's documented contacts with the police department will be reviewed in this section. Since both Chief Irvine and Pierre Irvine indicated that Mrs. Irvine had substantial mood swings because of medication and drinking, I will also attempt to comment on this aspect.

On October 15, 1998, Officer Lilly approached Mrs. Irvine at St. Thomas Hospital to inquire about domestic violence and her injured leg. Mrs. Irvine indicated that she fell and indicated that she did not need the police. There is no indication that Mrs. Irvine was in an agitated mental state or appeared to be under the influence of alcohol and/or medication.

On November 18, 1998, Mrs. Irvine called Sgt. Brown at the IAU office. Mrs. Irvine apparently did not identify herself, and Sgt. Brown did not record the conversation until he realized he was talking to Mrs. Irvine. I listened to the recorded portion of this conversation and Mrs. Irvine at times sounded agitated and emotional. She talked of being afraid and discussed in general past incidents of physical abuse during the course of her marriage. Mrs. Irvine also talked about not being willing to give her husband a divorce and was upset because her husband lied to her about moving out of the house. Mrs. Irvine also accused the investigators of disclosing information from her friend to her husband (no evidence that this occurred) which was causing her problems. Mrs. Irvine's mental state and attitude toward her husband were substantially different in comparison to the interview of October 16, 1998. A meeting was scheduled for November 20, 1998. Sgt. Brown did not follow through with this meeting. I discuss this issue further under the section dealing with the IAU investigation.

On November 23, 1998, Mrs. Irvine again called the IAU office and talked with Sgt. Brown. Mrs. Irvine also started this conversation without identifying herself. This conversation was recorded, and Mrs. Irvine's mental state was similar to the call of November 18, 1998. This call was shorter and primarily focused on her upcoming surgery and her concerns about the release of information.

On December 7, 1998, the IAU officers attempted to make contact with Mrs. Irvine through her son, Pierre. Mrs. Irvine was apparently in Louisiana at this time. Later that day Mrs. Irvine called and left a voice message for Sgt. Brown. She indicated that she didn't want to discuss the issue and did not have anything further to say. I listened to the recording of this short message. Mrs. Irvine identified herself and was direct and brief. While Mrs. Irvine sounded calm, the conversation was too short to comment on her mental state.

On December 30, 1998, after a meeting with Akron City Prosecutor Doug Powley and Domestic Violence Prosecutor Rhonda Stabler, Lt. Ed Duvall contacted Mrs. Irvine, by telephone, in Louisiana. This contact was intentionally unannounced and Lt. Duvall was satisfied that he was in fact talking with Geneva Irvine. She indicated that she was "fine", that the operation went well, and that she was getting along with her husband. Mrs. Irvine indicated that she did not want her husband prosecuted and would not sign a medical release. I listened to the tape of this interview and her mental state seemed cordial and calm, and was consistent with the attitude during the original IAU interview on October 16, 1998.

In my opinion, the tapes of the above conversations demonstrate that Mrs. Irvine does have substantial mood swings. Whatever causes Mrs. Irvine to become agitated and emotional also triggers her to vocalize her anger toward her husband. It is not clear to me from the tape that Mrs. Irvine agreed to sign a medical waiver during the phone conversation of November 18, 1998. She seemed uncomfortable discussing the issue and changed the subject. Even if she did agree, it would be inappropriate for law enforcement officers to attempt to have a waiver signed while Mrs. Irvine was not in a stable mental state.

Chief Irvine's Conduct in Response to Allegations

In my opinion, Chief Irvine did not attempt to obstruct or interfere with the investigation into his conduct. He timely notified the mayor and assigned his internal affairs officers to investigate his wife's allegation as they would in other internal investigations. While the chief was apparently attempting to put himself on a plane with all other Akron police officers under investigation, two problems existed. In addition to being an awkward and stressful situation, the IAU officers did not have a workable independent chain of command. This process also created a substantial appearance of impropriety.

As previously discussed, the above problems could have been minimized by utilizing the procedure followed in the second internal investigation into the chief's conduct. The IAU investigators in that investigation reported directly to Deputy Mayor Romanoski, the chief's direct supervisor. While Chief Irvine did not suggest this alteration to the chain of command, he immediately agreed and implemented this process at the request of the IAU officers.

The internal affairs officers indicated that they felt no improper pressure from Chief Irvine and there was no interference with either investigation. The chief did, however, question Lt. Daugherty concerning Lt. Duvall's involvement in the second investigation. Chief Irvine was apparently upset because Lt. Duvall was the Juvenile Division's commander and was not assigned to IAU. Lt. Daugherty's explanation that Lt. Duvall received the information, which initiated the second investigation, apparently satisfied the chief. There was no further objection to Lt. Duvall's involvement. I concur with the investigators' opinion that this conduct was not obstruction or interference.

It is also my opinion that Chief Irvine did not attempt to improperly control or stop publicity in this case. He timely called the publisher of Akron's newspaper and explained both sides of the issue, and asked to be treated fairly. The publisher explained to us that he told Chief Irvine that he was not a news conduit. The chief told us that he did not remember that comment being part of the conversation. Regardless of who is correct, the publisher did not advise the chief to contact any other person at the paper. Chief Irvine indicated that he called the publisher because of past social contacts.

The chief also told us that he showed the incident report involving Mrs. Irvine's domestic violence allegations to the newspaper reporter assigned to the police department. The chief indicated to us that he did not put restrictions on the reporter regarding the use of the information in the incident report, but did indicate that the incident should be investigated before it was publicized. The chief did acknowledge that to some extent the conversation could be considered confidential. In fairness to Chief Irvine, however, many law enforcement officials utilize this same procedure involving the early release of information. The sheriff and his investigation review panel concurred and added that the process is determined by the working relationship with a particular reporter. In this case the involved reporter declined to be interviewed. Therefore, we cannot verify what the newspaper reported on this issue.

Chief Irvine timely disclosed the allegations of domestic violence to the lowest and highest levels of Akron's newspaper. It is up to the newspaper to determine how they utilize information and deal with public officials. In my opinion, the chief's conduct regarding the release of information was reasonable under the circumstances.

In addition to giving his explanation to the IAU officers on October 16, 1998, Chief Irvine was interviewed on three occasions regarding the domestic violence allegations. I will briefly summarize each of these interviews.

On December 18, 1998, the IAU officers interviewed Chief Irvine. The chief was given Miranda warnings and waived his rights. The questions focused on the incident of October 14, 1998, the mental and physical condition of Mrs. Irvine, and general marital difficulties. I listened to the tape recording of this interview.

On April 7, 1999, reporters from the Akron Beacon Journal interviewed Chief Irvine. The chief was questioned extensively on the internal investigation regarding the domestic violence allegations. This interview also covered the chief's family history and his current relationship with Mrs. Irvine. Many questions were also asked concerning police department operations and staffing situations. My information on this interview came from the transcript published in the newspaper. Attorney Ed Gilbert was present.

Capt. Mashburn and I interviewed Chief Irvine on June 17, 1999. Most of our questions focused on what the chief said and did after he was given the incident report on October 15, 1998. We also inquired about the chief's actions when he learned of the second investigation. Past and present issues concerning Mrs. Irvine were also discussed. This interview was not recorded but was summarized by Capt. Mashburn. Attorney Ed Gilbert was present.

Chief Irvine has apparently granted every interview that has been requested concerning the domestic violence issue. As far as we can determine, he has also answered every question during these interviews, regardless of relevancy.

Chief Irvine tried to handle his wife's allegations as he would any other internal investigation. To his credit, he attempted to do everything properly and requested a full investigation. This was, however, no ordinary internal problem. When Chief Irvine was confronted with the incident report alleging criminal activity against him, he was dealing with an unprecedented issue and did not have the benefit of hindsight. Regardless, it is my opinion that the chief should have removed himself from the chain of command concerning his wife's allegations. At that point he should have deferred to Deputy Mayor Romanoski for instructions as soon as the report was handed to him by Capt. Black.

Outside Investigation Factors Considered by the City

Any city confronted with the issue of investigating its police chief for criminal activity has to decide on a basic course of action. Administrators of a city that did not have capable and experienced internal investigators would logically seek outside assistance. On the other hand, city officials in a jurisdiction with a premiere internal affairs unit would have a much different perspective. While many factors could be considered, the quality of the investigation should be on top of the list. In Akron's case, because of past performance, city officials have absolute confidence in the Internal Affairs Unit of their police department. In my opinion, this confidence factor explains the mayor's attitude of not considering an outside agency during the first investigation of Chief Irvine.

An outside agency investigation was, however, discussed at the start of the second investigation. Even though the IAU investigators had various opinions on the issue of involving an outside agency, they asked the mayor to consider the issue. While the mayor discussed with us several reasons for not seeking assistance from an outside agency, he emphasized his concerns about the quality of the investigation. He commented that the IAU investigators had been commended for their previous internal investigations, and he was reluctant to take a chance on investigators from an outside agency. As a point of explanation, Lieutenants Duvall, Calvaruso, and Daugherty shared the Ohio Police Officer of the Year award, presented by the Ohio Prosecuting Attorneys Association, for both 1997 and 1998. These awards are determined from nominations by county prosecutors throughout Ohio. Each year's award concerned separate internal investigations of high-ranking police officials.

The mayor also expressed a concern about treating the police chief differently than any other police officer under investigation. While the mayor used the term "mixed signals", there is a legitimate issue to consider. An outside investigation would subject the police chief to an undefined external procedure, while a well-defined internal investigation process governs all other Akron police officers. If the Akron police chief served at the pleasure of the mayor, which is the case in some cities such as Cleveland, the mayor could consider any type of investigation. In Akron, however, the police chief has the same civil service protections afforded all other police officers. While this protection normally reduces the turnover of police chiefs, it also restricts arbitrary action against the chief. If the city could negotiate around the civil service issue concerning an outside investigation, a civil rights problem would be the next logical progression.

Another problem that concerned the mayor was that he didn't want to "dump" his problems on another agency. I have heard this same concern expressed in the past by other public officials when I was involved in discussions about retaining special prosecutors. Stark County Prosecutor Robert Horowitz has worked for different jurisdictions as a special prosecutor, including Summit County. He was asked to review the investigation package in this case involving Chief Irvine. Prosecutor Horowitz was impressed that the City of Akron confronted the problem directly, without seeking a special prosecutor, and indicated to me that the community should be proud of the investigators for their thorough work.

Deputy Mayor George Romanoski became involved in the Irvine case on November 20, 1998, at the request of Chief Irvine. The IAU investigators had made this suggestion to the chief after discussions with the mayor. From that point forward, the deputy mayor replaced the chief in the chain of command, and the IAU investigators reported directly to Deputy Mayor Romanoski.

The deputy mayor told us that the IAU investigators gave him different opinions when they discussed the issue of whether there should be an outside investigation. Deputy Mayor Romanoski took this issue under advisement and subsequently consulted with the mayor and law director. On December 2, 1998, the deputy mayor told the IAU investigators that they would stay on and complete the Irvine investigation. He indicated to us that he advised the investigators that he did not anticipate any retaliation problems from the chief. The deputy mayor did, however, stress to the IAU officers that he wanted to be immediately notified about any conduct by the chief that caused them problems, now or in the future, because of this investigation. He told the officers that, as the chief's supervisor, he would take whatever action was necessary to protect the investigators. Deputy Mayor Romanoski told me that he sensed no hesitation from the IAU investigators regarding the completion of the investigation and was confident in their abilities.

Deputy Mayor Romanoski also told us, in his opinion, there was no good answer to the outside investigation issue. He anticipated criticisms no matter how the problem was resolved.

Investigation by the Internal Affairs Unit

Based on our review, inquiry, and investigation, it is my opinion that the IAU officers conducted a thorough and professional investigation. These investigators understood the limitations applicable to misdemeanor investigations and properly made the important distinction between information and evidence. The tapes of their interviews demonstrate good investigation techniques and communication skills. The specific interviews of Chief Irvine and Pierre Irvine were proper. Their written report thoroughly summarized the investigation so that an informed legal review could occur. The IAU officers understood the legal concepts applicable to this case and appropriately consulted with their legal advisors.

As indicated to us by the IAU officers, their most difficult decision involved deviating from the police department's chain of command by directly contacting the mayor, and bypassing the chief, between the first and second investigations. While the chief or the city administration probably should have originally made this decision for them, their decisive action at a necessary point demonstrates their experience and sound judgment. A proper and workable chain of command was established as soon as the IAU officers began reporting directly to Deputy Mayor Romanoski.

I do, however, have several observations and/or recommendations. The first involves a meeting that was scheduled for Mrs. Irvine on November 20, 1998. This meeting was set two days earlier during a phone conversation with Mrs. Irvine when her state of mind was at issue. On November 20, 1998, the IAU investigators met with Deputy Mayor Romanoski to determine if IAU would be replaced with outside investigators. Sgt. Brown told us that since no decision on outside investigators was made that day, the investigators became concerned about subjecting the victim and witnesses to duplicate interviews. Therefore, the meeting with Mrs. Irvine did not occur. While it is unlikely that Mrs. Irvine would have actually met with the investigators, some type of contact should still have been attempted to cancel the interview.

If outside investigators were retained, they would probably start at the beginning and repeat the investigation. Therefore, the investigators' decision after the meeting on November 20, 1998, to stop interviews until a decision was reached on outside investigators was reasonable. There was, however, an unanticipated delay in making the decision. Our interviews confirmed that Deputy Mayor Romanoski, after consultations with you and the mayor, advised IAU on December 2, 1998, that they would continue and complete the second domestic violence investigation. In fairness, the delay in this decision is misleading by the dates. This time period encompassed two weekends and the Thanksgiving holidays. It should be noted, however, that while the officers were not proactive during this period of time, they were reactive to any issues that concerned this investigation.

Lt. Duvall received substantial criticism from the newspaper regarding how he handled the last phone contact with Mrs. Irvine, prior to the conclusion of the second investigation. This criticism concerns giving the victim an option regarding a prosecution. Most law enforcement administrators and prosecutors concur that a case for domestic violence should proceed, with or without the cooperation of the victim, provided there is sufficient independent evidence to support a prosecution. If there is not sufficient independent evidence and the victim will not cooperate, a prosecution is not possible.

Before calling Mrs. Irvine, Lt. Duvall was operating under the correct assumption that a prosecution against Chief Irvine, for a domestic violence offense, was not possible without testimony from Mrs. Irvine. This assumption was based on his experience and advice from the city prosecutor's office. While the words that Lt. Duvall used in his conversation with Mrs. Irvine may not satisfy domestic violence "experts", he was dealing with reality and not theory. In this case, reality dictated that Mrs. Irvine did control the prosecution process. To infer or suggest to Mrs. Irvine that charges will be filed against her husband, with or without her cooperation, would have been misleading and false. Therefore, under the circumstances, it is my opinion that Lt. Duvall handled this contact with Mrs. Irvine in a realistic and reasonable manner.

Even though the IAU officers had correctly concluded that there would be no prosecution without the cooperation of Mrs. Irvine, they still should have talked to Charlotte Twitty before concluding the investigation. I also realize that the IAU officers were being requested to conclude the investigation as soon as possible.

The procedure of holding incident reports in some IAU cases should be reviewed and refined. There are valid law enforcement objectives for this interruption of paper flow as was outlined previously in this report. In practice, however, there are inconsistencies in its application and how the reports are reintroduced and distributed. Inadvertent holding of the report in this case, after the first investigation was completed, was a problem. A written policy may cause more focus on this issue and reduce the chances of mistakes in the future. The monitoring of incident reports, as they are filed, is an important part of the news gathering process. These public reports also assist service organizations and support the concept of open government. This access should be limited only for valid defined reasons and only for a period of time that is absolutely necessary for the integrity of the investigation.

In my opinion, the issues raised above, concerning my comments and recommendations, did not affect the overall quality of this internal investigation. Capt. Mashburn supervises criminal investigations on a daily basis. I concur with his observation that no investigation is perfect including our own. The IAU investigators performed well in a very difficult situation. Mayor Plusquellic's confidence in his IAU investigators is justified.

Conflict of Interest or Appearance of Impropriety

By my definition, Chief Irvine did not create a conflict of interest by ordering an investigation into criminal allegations against him. A conflict would have occurred if he had tried to direct or become involved in the investigation. In my opinion, the chief did, however, create the substantial appearance of impropriety by not immediately removing himself from the chain of command, regarding his specific case. Had the chief removed himself, or had the mayor ordered him removed from the chain of command as soon as the allegations surfaced, the appearance of impropriety would have been substantially reduced. As previously indicated, the process of having the IAU investigators report directly to Deputy Mayor Romanoski during the second investigation was a reasonable and workable solution.

The appearance of impropriety is always present, to some degree, when police officers investigate other police officers in the same department. Since it is unrealistic to seek outside investigators every time allegations occur against a police officer, internal affairs units were created. IAU officers, on occasion, investigate other officers who have been former partners, supervisors, or subordinates. Since officers do not remain in IAU indefinitely, it is conceivable that former IAU officers could be supervised by an officer they investigated. There was apparently no public comment on appearances or "conflicts" when the IAU officers investigated a police captain and deputy chief for serious felony activity. If these investigations are acceptable when charges are filed and convictions occur, logic dictates that they should also be acceptable when no charges are filed.

There is no question that the internal investigation of Chief Irvine was unique because he was in the chain of command during the first investigation. This factor created a very high appearance of impropriety. At some point during the course of its coverage, Akron's newspaper publicly concluded that the only obvious course of action for the city to have taken was to have an independent investigation from the beginning. The newspaper is right if the elimination of the appearance of impropriety is the controlling consideration. To support its position, and/or to cause an independent review, the newspaper conducted an intense investigation of the investigation and published its results. The City of Akron was criticized at every level. The criticisms started with the first police officer involved and ended with the mayor. Every decision that was made has been questioned and subjected to hindsight review. The report of investigation and taped statements have been dissected line by line, and in some cases, word by word.

Criminal investigations involve many variables. In addition to significant variations in each agency's policies and procedures, investigations involve many judgments and decisions. Separating the investigation into small components, and intensely scrutinizing very narrow portions of the investigators' conduct, can significantly challenge the credibility of any investigation. Defense lawyers in criminal trials use this process to create "reasonable doubt". Relatively minor decisions, omissions, and mistakes are exploded into major controversies. There is nothing improper about this technique since it provides the ultimate test for any criminal investigation. Most competent investigations can survive this type of challenge. If, however, the investigation scrutinized by dissection is vulnerable because of an obvious appearance of impropriety, the overall quality of the investigation is eventually obliterated by the appearance controversy. In my opinion, this is why the appearance of impropriety should be minimized or eliminated whenever feasible.

Different Treatment for this Case

There is no question that this case was treated differently than any other domestic violence case. I will comment on the initial hospital and police response, the investigation process, and the degree of news coverage.

Because of stated guidelines for hospitals on reporting domestic information, it was the exception that this incident was even reported to the police. I have previously cited the applicable state statute in this report.

Because of the victim's attitude and explanation concerning the incident and the nature of the injury, many police officers would not have taken a police report. The decision to take the report in this case was driven by the fact that the allegations involved the police chief

Because this was not a preferred arrest situation, the incident report in this case would have been filed with the other 1,274 incident reports involving domestic violence allegations during 1998 where no arrest occurred. Under normal circumstances, there would have been no investigation.

Because this case involved a police officer, there was an internal police investigation. Since additional information was received after the first investigation was closed, a second investigation was required.

Because this case involved the police chief, there was an intensive newspaper investigation. This investigation scrutinized every aspect of the city's response to the incident and dissected the police internal investigation. The newspaper utilized "experts" throughout the state and country for their inquiry.

Because the newspaper apparently felt the city should have responded differently to the police chief's situation, they published the results of their investigation in an exhaustive eight-part series. I have read Akron's newspaper for many years. I don't recall any single event, local or otherwise, that the paper covered with that amount of detail and volume of newspaper space within an eight-day period. This investigation and coverage obviously involved considerable resources. I anticipate that someone will do a word count and correct my recollection.

Because of the amount of the newspaper coverage, the City of Akron requested Sheriff Warren and me to conduct the fourth investigation that is documented by this report. We could have offered an opinion with a less detailed review and investigation. The city, however, requested that "no stone be left unturned". In my opinion, most aggravated felonies and murders investigated in Summit County do not receive the investigation resources that have been devoted to this case.

To say that the uncharged misdemeanor allegation against Chief Irvine was treated differently than other possible domestic violence situations is an obvious understatement. These investigations occurred because Edward Irvine is the police chief. Unfortunately, the fact that my report is long and detailed will probably contribute to the continued analysis of this incident. I anticipate a media investigation of our investigation with more extensive coverage.

After four investigations there is insufficient admissible evidence to establish that a misdemeanor offense occurred at the Irvine residence. In my opinion, considering the current state of evidence, this incident should be allowed to revert to a private matter for the Irvines.

Outside Investigation Factors

From the perspective of fact finding, evidence gathering, and a prosecution determination, an independent investigation of the Akron police chief by an outside agency was not necessary. As I have already indicated, in my opinion, Akron employs investigators and legal advisors with the credibility and experience to investigate and make a prosecution decision. Regardless of the quality of the investigation, the appearance of impropriety cannot be eliminated or reduced without the involvement of outside investigators.

The total elimination of the appearance of impropriety would require outside investigators who are strangers to the parties. There are several problems with this solution. Most public agencies outside Summit County would not have jurisdiction. Agencies that did have jurisdiction probably would not be willing to devote significant resources and time to a misdemeanor investigation.

The process of finding a public agency willing to do an exhaustive investigation can be time consuming. Agreeing on the procedures and actually having investigators begin the investigation would take additional time. Delaying the start of the investigation so that strangers can be involved from the beginning is not practical. The three IAU officers were standing in the Irvine home, interviewing Mrs. Irvine, within 90 minutes of being assigned the investigation. This would not occur with outside investigators. To further complicate the issue, some agencies are hesitant to become involved if another agency has done any part of the investigation.

I reviewed the letters and responses of the three public agencies that the mayor asked to conduct the outside review of the internal investigations. In my opinion, the only one of those agencies with possible jurisdiction would have been the Ohio Attorney General (BCI). It took two weeks for the attorney general to decline the request. While this process could probably be accelerated to some degree, public agencies outside the county are not a good solution.

Private individuals or agencies, hired at hourly rates, create problems with jurisdiction, authority, and experience. Another alternative is to hire a special prosecutor from another county and have that prosecutor arrange for his own investigators. The special prosecutor would probably have to request the Summit County Sheriff to deputize outside investigators. This process subjects the sheriff to liability.

In my opinion, the only logical solution is to request assistance from the Summit County Sheriff in the first place. The sheriff has the jurisdiction, experience, and resources to handle investigations within Summit County. The sheriff, however, cannot totally eliminate the appearance of impropriety because he is not a stranger to the parties. The independence of the sheriff does, however, minimize the appearance of impropriety. The Summit County Sheriff's countywide jurisdiction and the ability to conduct a professional, complete, and timely investigation solves the other problems associated with outside investigators.

During my years as a prosecutor, the Summit County Sheriff always responded to our requests to assist or investigate issues involving other Summit County law enforcement agencies. Sheriff Warren without hesitation offered his assistance in this case, pursuant to your inquiry regarding an independent review and/or investigation. Even though this type of assistance requires substantial time, resources, and personnel, the sheriff doesn't request compensation or reimbursement. We are fortunate to have this type of cooperation in Summit County. As I originally indicated to you, I would not have been willing to conduct this inquiry and review without being able to work directly with Sheriff Warren.

In this case, as I have previously indicated, the process of having Deputy Mayor Romanoski assume the chain of command directly to the IAU officers became a workable solution that reduced the appearance of impropriety. Once the decision was made during the second investigation not to have outside investigators, Deputy Mayor Romanoski took decisive action to protect the IAU officers and timely complete the investigation. If this process had occurred at the time the first investigation started, an outside investigation may not have been necessary.

The IAU officers, despite the chain of command problems, demonstrated their professionalism and sound judgment in the process of completing their assignment. The newspaper has demonstrated the role of the free press in our society by questioning the entire process of investigation. In my opinion, that the Akron Police Department reinforces its integrity every time it aggressively undertakes an internal investigation.

Evidence Update and Evaluation

We received information from three more women who indicated that Mrs. Irvine had told them her husband had abused her. These women also had observed bruises. Akron's IAU officers had previously documented similar information from three other women. I have explained why these statements are not evidence on Page 8 of this report.

We received part of a hospital report from an anonymous source. This report appears to be privileged and is subject to the same limitations as the hospital information that was reviewed on Page 5 of this report. Some of Mrs. Irvine's statements to hospital personnel, on October 15, 1998, would probably be admissible as evidence. In my opinion, however, these statements would be of limited value without the cooperation and testimony of Mrs. Irvine. Akron's IAU officers documented the admissible information in their report. It is also my opinion that hospital records of possible previous incidents would be of limited value without the cooperation of Mrs. Irvine.

We received information that Pierre Irvine had said in the distant past that he had witnessed physical violence by his father against his mother. Pierre Irvine has stated directly to Akron's IAU officers and us that he has witnessed verbal arguments between his parents but has never witnessed any physical violence.

On June 17, 1999, I talked by telephone with Geneva Irvine. She indicated that she would not talk about her private life with anyone. Mrs. Irvine did acknowledge that Ed Gilbert was her attorney and that I should talk with him. She indicated that she did not have to answer any questions and terminated the phone call.

The focus of our review, inquiry, and investigation was on the incident of October 14, 1998. We did, however, receive information that went as far back as 1977. Keeping in mind the distinction between information and evidence, minimal evidence has been developed beyond what the IAU officers originally documented from the hospital.

Based on all information and evidence available to us, Sheriff Warren and I have concluded, by using reasonable law enforcement standards, that:

• It cannot be determined whether Akron Police Chief Edward D. Irvine did or did not commit the offense of domestic violence on October 14, 1998.

• The investigation of domestic violence allegations against Chief Irvine, conducted by the Akron Police Internal Affairs Unit, was thorough and professional. We agree with the conclusion of "unsubstantiated" as stated in their written report. The labor contract for the Akron Fraternal Order of Police defines unsubstantiated as the situation when internal investigators "cannot determine whether the offense occurred or not". Article VII(N)(1).

Chief D. Bailey, Inspector T. Wilmoth, Captain J. Mashburn, and Sergeant J. Limbert concur in the above conclusions.

Prosecution Opinion and Evaluation

Based on all information available to me, it is my opinion, to a reasonable legal certainty, that:

• There is insufficient admissible and/or credible evidence to support the prosecution of Akron Police Chief Edward D. Irvine for the criminal offense of domestic violence.

• The decision of the City of Akron Law Department not to authorize the prosecution of Chief Irvine for domestic violence was correct, based on the information available.

• Chief Irvine should not be prosecuted for domestic violence.

In the event Mrs. Irvine would recant her recantation in the future, agree to provide consistent and reliable information alleging physical abuse by her husband, and agree to testify, a prosecution would be possible. It is my opinion, however, that an experienced independent prosecutor may decline prosecution because of the significant credibility issues.

Respectfully submitted,