By Peter H. Milliken
Now that the Oakhill Renaissance Place criminal- conspiracy case has been dismissed, the Cafaro interests argue that sealing case records is important to protect their privacy rights.
Because of last month’s dismissal, the Cafaros “now have a heightened privacy interest in keeping the bills of particulars sealed that outweighs any qualified right of public access,” their lawyers said in a recent filing at the Ohio Supreme Court.
The filing was made Friday in a case in which The Vindicator and 21WFMJ-TV have sought a writ of prohibition that would compel visiting Judge William H. Wolff Jr. of Mahoning County Common Pleas Court to unseal the bills of particulars, in which the special prosecutors provided details of the charges against the defendants.
Disagreeing with the Cafaros is Atty. Gregg Leslie, legal defense director for the Reporter’s Committee for Freedom of the Press, which has filed a brief in support of the newspaper and TV station at the state’s top court.
“Their highest interest is in having a fair trial, so, if the risks of that have been alleviated, or at least postponed, then the media’s right of access should triumph,” Leslie said of the Cafaros.
“They want to reward themselves for having it cloaked in secrecy in the first place,” Marion H. Little Jr., lawyer for the newspaper and TV station, said of the Cafaros and the criminal case in which they were defendants.
Although he has unsealed many documents in the Oakhill case, Judge Wolff has kept the bills sealed, saying their release would have made selection of an impartial trial jury in Mahoning County unlikely.
However, the newspaper and TV station have argued the remedy for that problem, had it occurred, would have been to move the trial to another Ohio county.
“Many studies and cases and judges’ experience have shown that media reports have little effect on juror candidates, even if they read them, which they often don’t,” Leslie said. “If they do read them, they’ve often forgotten them by the time jury selection comes around.”
Because the criminal charges were dismissed without prejudice — meaning they could be refiled — the Cafaros’ need to protect their fair trial rights “is lessened, but not eliminated entirely,” they told the top court.
Judge Wolff dismissed the 73-count Oakhill indictment at the request of the special prosecutors, who said the FBI’s refusal to provide them with tape recordings to be shared with the defense in the pre-trial evidence exchange, known as discovery, made it impossible to proceed with the case.
In the Oakhill case, five people and three companies were charged with conspiring to impede the move of Mahoning County’s Department of Job and Family Services from Cafaro Co.-owned rented quarters to the county-owned Oakhill Renaissance Place.
Oakhill is the former Forum Health Southside Medical Center, to which JFS moved in 2007.
Charged with conspiracy and other charges were: Anthony M. Cafaro Sr., former president of the Cafaro Co.; the Cafaro Co. and 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; and former county JFS Director John Zachariah.
Two other defendants, Flora Cafaro, part-owner of the Cafaro Co., and Atty. Martin Yavorcik, faced only one count of money laundering and were not charged with conspiracy. The money-laundering charge pertained to an allegedly concealed $15,000 gift Flora Cafaro made to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
Attached to Friday’s top court filing was a copy of the Cafaros’ post-dismissal application to Judge Wolff to seal Oakhill criminal case records with a supporting legal memorandum. Both the application and the memorandum were previously sealed from public view.
The Cafaro defendants noted in the memorandum that they have no prior criminal convictions and that no other criminal proceedings are pending against them.
The memorandum argued that the records should be sealed if the state’s need to maintain such records doesn’t outweigh the interests of the parties seeking the sealing.
“The interests of having the official records sealed far outweigh the legitimate needs, if any, of the state to maintain those records,” the Cafaros said of the Oakhill case.
“With a dismissal, the accused is no longer afforded the opportunity to defend against or refute the allegations and accusations contained within the court’s file, heightening the balance of factors in favor of privacy interests,” the Cafaros told Judge Wolff.
“Should the records not be sealed, it is expected the media, and others, will utilize the by-product of the state’s investigation and prosecution to continue the sensational news coverage, further harming the Cafaro defendants’ professional and personal reputations,” the Cafaros argued.
“The grief, emotional distress and embarrassment suffered by the Cafaro defendants in this case were extensive. Now that the case is dismissed, they wish to put this ordeal behind them and restore their reputations,” the Cafaros concluded.