The Supreme Court of Ohio reversed an appellate ruling Thursday resulting in the dismissal of an indictment against a Canton police officer who was compelled by his employer to make a statement which later incriminated him in a subsequent criminal proceeding.

The high court reversed the 5th District Court of Appeals holding, which reversed the portion of the trial court opinion that dismissed the indictment, and held that Anthony Jackson's statement - classified as a Garrity statement - was not used to obtain the indictment but was used by the trial prosecutor after indictment.

Additionally, the appellate court held the proper remedy for the Garrity violation was to purge the prosecutor's files of the internal-affairs file, including the Garrity statement, and try the case with a new prosecutor.

"The state argues that Jackson's Garrity statement was not used in any way at the indictment phase," Justice Judith Ann Lanzinger wrote for the court. "It contends that although Jackson's statement had disclosed the name of a previously unknown witness, the witness was never mentioned to the grand jury and (the investigating officer) explicitly declined to discuss the content of Jackson's statement. ... "

However, Lanzinger further stated she agreed with Jackson's argument - that because the investigating officer, Lt. David Davis, was present during the making of the Garrity statement and afterward became a witness before the grand jury, the statement was used to obtain the indictment.

"It is not the extent of the prosecutor's own knowledge of the contents of the Garrity statement that creates the problem here," the justice continued. "The prosecutor chose to offer the testimony of the internal investigating officer who knew the substance of Jackson's Garrity statement and who used the statement to further his own internal investigation. ... The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement.

"We agree with the trial court's determination that Davis' testimony before the grand jury constituted derivative use of Jackson's statement by the state in violation of Garrity."

According to case summary, Jackson was on administrative leave from the Canton Police Department when he was involved in an incident that eventually led to his indictment for possession of a firearm in a bar.

On May 30, 2006, Perry Township Police Sgt. Jon Roethlisberger responded to a call that there was a fight at Lew's Tavern in Perry Township. Jackson and another person were involved, but neither wished to pursue criminal charges. While talking to a bar patron on the night of the incident, Roethlisberger learned that Jackson had possessed a firearm inside the tavern.

Davis investigated the incident on behalf of the Internal Affairs Unit for Canton Police Department. As part of this internal investigation, Davis ordered Jackson to submit to an interview and make a statement. Davis gave Jackson a document titled "Garrity Warning" before the interview. The document served to assure Jackson that neither his statement nor its "fruits" would be used later in any criminal proceeding.

Jackson gave detailed answers to questions about the incident, summary continued. He also disclosed the name of a potential witness. The state acknowledged that no one connected to the investigation had previously been aware of the potential witness. After Jackson answered Davis' questions, Davis continued to investigate by interviewing the man deemed a potential witness.

Roethlisberger and Davis testified before a grand jury Aug. 10, 2006. The grand jury testimony, which the trial court ordered be included under seal as part of the record, revealed that Davis testified on the propriety of an officer's carrying a firearm while on administrative leave and on the implications of administrative leave in general.

When Davis was asked whether he had spoken to Jackson about the incident, he acknowledged the existence of Jackson's Garrity statement, but declined to divulge its contents. The grand jury returned an indictment against Jackson for possession of a firearm in a D-permit liquor establishment in violation of R.C. 2923.121(A).

Jackson filed a motion to dismiss, arguing that the state had improperly used his Garrity statement, summary detailed. The trial court held that Davis' testimony before the grand jury violated Jackson's Fifth Amendment rights pursuant to Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, because Davis had knowledge of Jackson's compelled statements. The court dismissed the indictment.

Following the 5th District's rendering of the matter, the Supreme Court accepted jurisdiction to define the meaning of "use" for Garrity purposes and to clarify the remedy for a Garrity violation.

Jackson's attorney, Bradley Iams, said he was happy with the decision for two reasons.

"For my client's personal interest, it's been four years this has been hanging over his head," Iams said.

In addition, he said, the court attempted to draw some bright lines relevant to Garrity statements.

"There is no reason for a prosecutor to have access to these materials," Iams noted.

He concluded the Supreme Court's prohibition of use of the information was the best way to resolve the consequences.

In a dissenting opinion, Justice Robert Cupp faulted the majority not allowing the state to accept the 5th District ruling or allow "the state to try the case without the disputed evidence and with a new trial prosecutor who has not seen any of the disputed evidence - instead of dismissing the case outright."

"This less drastic option also would further the majority's stated goal of discouraging the improper sharing of compelled testimony obtained in an internal-affairs investigation with the prosecution team in the related criminal proceeding," Cupp wrote in the opinion which was joined by Evelyn Lundberg Stratton. "Apparently, the majority is disinclined to permit this reasonable solution as an optional remedy to the state."

Justice Terrence O'Donnell wrote a separate concurring opinion which was joined by Justice Paul Pfeifer.

Chief Justice Thomas Moyer and Justice Maureen O'Connor joined Lanzinger's opinion.

The case is cited as State v. Jackson, Slip Opinion No. 2010-Ohio-621.