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Locking the courthouse door is no assurance of a fair trial



Published: Sun, September 12, 2010 @ 12:00 a.m.

A defendant’s right to a fair trial and the need for courts in a free country to operate openly often come into conflict. And it is the obligation of a judge to balance those competing interests, using all the tools at his disposal.

That doesn’t appear to be happening in what’s come to be called the Oakhill case.

The case involves indictments against high-profile individuals, including two current county officeholders, and principals in one of the area’s most prominent private companies.

They have been accused in a multi-count indictment of having conspired to prevent or delay the move of the Mahoning County Department of Job and Family Services from a former shopping plaza owned by the Cafaro Co. to Oakhill Renaissance Place, a former hospital now owned by Mahoning County.

Some lawyers, and maybe even some judges, would like to restrict public access only to that evidence that is eventually introduced in court. But that’s not the tradition that is honored by our open court system. Unlike some countries, where even the name of someone charged with a crime is sealed pending conviction or exoneration, or others in which the fate of a citizen is determined entirely behind closed doors, we in the United States have found that open is better.

Unusually high interest

In most cases, of course, the public has little interest in the background mechanizations of the court. But not this time. The defendants in these cases are: Anthony M. Cafaro Sr., retired president of the Cafaro Co.; his sister, Flora Cafaro, part-owner of the Cafaro Co.; the Cafaro Co. and two of its affiliates, the Ohio Valley Mall Co. and the Marion Plaza Inc.; county Commissioner John A. McNally IV; county Auditor Michael V. Sciortino; former county Treasurer John B. Reardon; John Zachariah, the former county Job and Family Services director, and Atty. Martin Yavorcik, who made an unsuccessful run for county prosecutor.

People want to know details of how the officers of influential companies doing business with the county interact with county officials elected to work in the public’s interest .

Judge William H. Wolff Jr. of Kettering, who has been assigned to preside over the case, has set the trial to begin nine months from now. The implication of an order he signed last week is that until then, details of what the prosecution has uncovered will be sealed. He’s doing this in the stated interest of protecting the purity of the jury pool.

Presumption goes too far

His action, however, presumes that normal access to court documents would poison the jury pool, depriving the defendants of a fair trial.

The extent to which any pretrial publicity has affected any prospective juror’s ability to remain impartial is something that is routinely examined during jury selection. And if it becomes obvious that 12 impartial jurors cannot be found in Mahoning County, the court has an option of changing venue.

Judge Wolff was assigned from outside the area to hear the case in the interest of impartiality. If it is necessary to take the trial outside the area in the interest of impartiality — and the need for that is by no means certain — it can be done.

It is more than a little disconcerting that all discussion about blocking public access to future filings was done, itself, behind closed doors.

This is not a federal case. In federal prosecutions the complaint is often heard that unless the defendant has extraordinary resources, he or she is almost certainly outgunned by the U.S. Justice Department.

In this case, however, there are five special prosecutors representing the state and the Ohio Ethics Commission. They are outnumbered almost 3-1 by a panoply of defense lawyers, some local, others from Cleveland, Pittsburgh, Boston and New York City.

While it is true that prosecutors represent the state, and therefore the people, their focus is on winning a criminal conviction, not on preserving the public’s right to know.

Broader considerations

It falls to the judge to recognize all the various competing interests, not necessarily only those that are being argued in front of him by specific advocates at any one time. When he chooses to close the door to his chambers and to give only two sides a hearing, transparency goes out the window.

Judge Wolff said this is the most complicated case he has ever tried in his long and varied career. He estimates testimony will take three months, which means a year from now, facts will still be in dispute, and some facts may never come to light.

It is unreasonable to expect the public to remain in the dark, especially when two of the accused remain on the public payroll.

In the judicial tool bag that Judge Wolff has at his disposal, he reached in and grabbed a sledge hammer. Before he crushes the public’s right to know, he should reconsider and find a more suitable tool.


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