Another judge recuses himself in Kinner hearing

Another judge recuses himself in Kinner hearing
Posted at 5:50 PM, Apr 25, 2016
and last updated 2016-04-25 18:20:18-04

BUTLER COUNTY, Ohio -- A hearing on whether to drop the murder case against a man charged with killing his girlfriend's daughter will pick up again Thursday, as a Butler County judge recused himself and the defense team called into question a special prosecutor assigned to the matter.

Attorneys for Bradley Young filed a motion last week asking the court to dismiss charges of murder, involuntary manslaughter and endangering children before Young goes on trial. Law enforcement officials in Butler County allege Young beat 2-year-old Kinsley Kinner so badly last year that she went in and out of consciousness, stopped breathing and eventually died Dec. 3.

After meeting in chambers on Monday with attorneys for both sides, Judge Michael Oster recused himself "based upon the nature of the type of case it is and what is going on," WCPO media partner the Journal-News reported.

Kinsley Kinner

Defense attorney Frank Schiavone III didn't elaborate on why he opposed having Oster hear the matter.

"I believe the proper course would be for the Supreme Court of Ohio to appoint the judge to hear this particular motion," Schiavone III told the Journal-News after the hearing. He also said he'd be asking a new judge to "address the appointment of a special prosecutor."

Young's defense team -- father-son attorneys Frank Schiavone III and Frank Schiavone IV -- claims his rights were violated when the Butler County Sheriff's Office recorded jailhouse phone calls between him and Shiavone IV. In court documents filed last week, the Shiavones alleged Butler County Sheriff's deputies "began acting on the information received and further acted to interfere with the representation of Bradley Young."

While jail phone calls are recorded as part of standard procedure, the defense team wrote that Young made the calls at a phone "outside of the customary area for calls to be made." None of the phone calls in question "were preceded by the customary recorded warning stating among other things, that 'the telephone call was being recorded, except for privileged communications between attorney and client,'" they wrote.

However, Prosecutor Michael Gmoser wrote in a response that when deputies inadvertently heard a portion of a call between Young and Schiavone IV, they stopped listening. Several deputies submitted affidavits stating they stopped listening when they realized Young was speaking to his attorney, and both the prosecutor and an assistant prosecutor submitted affidavits stating they hadn't listened to the recordings and didn't know what was discussed.

Judge Keith Spaeth recused himself from hearing Young's motion to drop the case, arguing he couldn't preside over Young's trial if he heard the recorded phone calls. Gmoser asked for a special prosecutor, saying he, too, shouldn't hear the recordings.

Butler County Administrative Judge Craig Hedric signed an order late last week sending the matter to Oster's court and appointing a member of the Warren County Prosecutor's Office to represent the state.

Late Monday, Hedric said he would hear the defense team's latest motion and scheduled a hearing for 10:30 a.m. Thursday. It's not clear if the Shiavones will oppose him, too.

After Monday's recusal by Oster, special prosecutor John Arnold left without comment, the Journal-News reported.

Last month, Kinsley's mother, Rebekah Kinner, pleaded guilty to involuntary manslaughter, permitting child abuse and endangering children. She faces a maximum of 25 years in prison. Her sentencing is scheduled for May.

Gmoser told the Journal-News that Kinner will be on his witness list for Young’s trial.