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By Peter H. Milliken
Special prosecutors plan to ask visiting Judge William H. Wolff Jr. to dismiss the entire 73-count indictment in the Oakhill Renaissance Place criminal-conspiracy case, according to three sources.
“The state intends to seek dismissal of all charges against all defendants,” the special prosecutors wrote in an email to defense lawyers.
Ralph Cascarilla, a Cleveland lawyer for the Cafaro Co., and Robert Duffrin, a Boardman lawyer for Atty. Martin Yavorcik, confirmed Wednesday that they received the email Tuesday and that the special prosecutors did not specify a reason for requesting the dismissal.
The third source confirmed the email and its contents but asked the confirmation not be attributed to him.
Cascarilla said the prosecutors will formally make their dismissal motion in a 9 a.m. Monday pretrial hearing before Judge Wolff.
The Ohio rules of criminal procedure require a court hearing on such a motion, Cascarilla said. Judges must approve such motions, and they normally do so, absent unusual circumstances, he added.
Paul M. Nick, executive director of the Ohio Ethics Commission and one of the Oakhill special prosecutors, however, said a court hearing is “not necessarily” required and the judicial approval can’t be taken for granted. “It’s within the judge’s discretion,” Nick said. Nick also declined to publicly discuss his reasons for seeking dismissal of the indictment.
“We are gratified by the decision and look forward to the formalization of their statement at the hearing on Monday,” Cascarilla said.
In the Oakhill case, five people and three companies were indicted last July by a Mahoning County grand jury on charges they conspired to impede the move of the county’s Department of Job and Family Services from Cafaro Co.-owned rented quarters to the county-owned Oakhill complex. Oakhill is the former Forum Health Southside Medical Center.
Facing conspiracy and other charges are Anthony M. Cafaro Sr., former president 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; and former county JFS Director John Zachariah.
The court proceeding beginning Monday was to have been a hearing on several motions, including one by the defendants to dismiss the indictment due to alleged prosecutorial misconduct.
The staff of county Prosecutor Paul J. Gains was improperly involved in the Oakill prosecution after Gains requested, and the county common pleas judges appointed, special prosecutors for Oakhill, who Gains said would be independent of his office, the defendants said. Gains did not respond to a request to comment.
Cascarilla deferred to the special prosecutors the question as to whether the dismissal is occurring in isolation or whether the Oakhill case might be pre-empted by a federal prosecution.
An FBI letter to a lawyer for Anthony M. Cafaro Sr. that was filed among court documents in the Oakhill case says there are other investigations concerning the former company president and invites Cafaro and his lawyer to discuss resolution of these matters with the FBI.
“We can’t comment. It’s not our case,” a spokesman for the U.S. Attorney’s Office in Cleveland said in response to a request to interview U.S. Attorney Steven M. Dettelbach concerning the Oakhill dismissal.
A major issue in the case is thousands of hours of tapes in the FBI’s possession, which special prosecutors say may relate to the Oakhill case. Special prosecutors disclosed the existence of the tapes to the defense in a March 31 court hearing.
One of the special prosecutors, David P. Muhek, an assistant Lorain County prosecutor, said in the hearing he’d have to get the tapes from the FBI and supply them to the defense lawyers, but the defense lawyers haven’t yet received them.
“The issues that have come up in the last two weeks have to do with the state’s inability to disclose those tapes,” said Lou DeFabio, lawyer for Reardon.
“This is a bizarre case, and when it actually happens, then I’ll believe it,” John B. Juhasz, lawyer for Sciortino, said of the dismissal. Juhasz declined to comment further.
“Right now, the charges are still pending. We’ll see what happens tomorrow and in the days ahead,” DeFabio said.
DeFabio said he did not want to make further comments until after a conference call that is scheduled for 8:15 a.m. today between Judge Wolff and lawyers for all parties in the case.
Duffrin said he believes the Oakhill dismissal will be the end of criminal charges against Yavorcik. “It was our intent from the beginning that we intended on trying the case,” rather than entering into a plea agreement, Duffrin said. All defendants in the case have pleaded innocent.
Yavorcik and Flora Cafaro, Anthony M. Cafaro Sr.’s sister and part owner of the Cafaro Co., are charged only with one count of money laundering in connection with an allegedly concealed $15,000 contribution she gave to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
Yavorcik and Flora Cafaro are not charged with conspiracy.
Besides Nick and Muhek, the special prosecutors in the Oakhill criminal case are Dennis Will, Lorain County prosecutor and Anthony Cillo, an assistant Lorain County prosecutor.