By Kimball Perry, Post staff reporter
Cincinnati Police Officer Patrick Caton can't be guilty of assault for punching Roger Owensby Jr. Nov. 7 because Owensby was already dead before Caton hit him, Caton's attorney told jurors today.
''To commit the crime of assault, the person has to be a live person,'' attorney Merlyn Shiverdecker told the jury in opening statements before Hamilton County Municipal Court Judge Guy Guckenberger.
Besides that, Caton, who is accused of punching Owensby in the back while Owensby was handcuffed and lying on the ground or in a police cruiser, ''never, never '' struck O wensby outside of actions permitted by police procedure, Shiverdecker added.
Caton's trial began two days after the start of trial for his police partner, Robert ''Blaine'' Jorg. Prosecutors are trying to convict Jorg of involuntary manslaughter, saying Jorg killed used a choke hold on Owensby that killed him.
While the the two cases, Shiverdecker noted, have many similarities, there is one huge difference.
''(Prosecutors) are trying to prove (Owensby) was alive for the purposes of Pat Caton's case and they're trying to prove he was dead for the purposes of Blaine Jorg's case,'' Shiverdecker said.
A coroner testified Wednesday in Jorg's case that Owensby died while face down in the parking lot of a Roselawn Sunoco store.
If that's true, Shiverdecker noted, Caton - accused by fellow officers testifying in the Jorg case of punching Owensby after Owensby was handcuffed and while Owensby was placed in a cruiser - can't be convicted of assaulting a dead person.
''Roger Owensby was dead on the ground in front of the Sunoco gas station before he was even placed in that cruiser,'' Shiverdecker said.
Shiverdecker, after completing his opening statements, walked up one floor to sit in on some of the Jorg trial as he has since Tuesday.
Caton's punches to Owensby's back - Shiverdecker called them open-palm blows - were completely legal.
''It was not deadly force. It was not designed or intended to inflict physical harm. The purpose of it is to get the suspect to comply,'' Shiverdecker said, noting Owensby's autopsy showed no signs of punches or similar injuries.
''None of the witness will testify they saw Pat Caton do anything wrong in this case.''
Jorg, Shiverdecker noted, is to blame for using ''deadly force.''
While Shiverdecker was blaming Jorg, Jorg's lawyer was blaming Caton for Owensby's death in Jorg's manslaughter case.
Cincinnati solicitor Ernest McAdams, in his very brief opening statement, made similar claims to those made by Hamilton County prosecutors seeking a conviction against Jorg.
Caton, McAdams said, was on Owensby's back as Owensby's hands were cuffed behind him and ''he's punched several times by Officer Patrick Caton.''
At least three fellow officers already have testified in the Jorg case they saw Caton punching a handcuffed Owensby while he was on the ground or in the cruiser. They also have been called to testify against Caton.
If convicted, Caton faces a maximum sentence of six months in jail.