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By Peter H. Milliken
Thousands of hours of tapes held by the FBI will weigh heavily in a Monday hearing in the Oakhill Renaissance Place criminal- conspiracy case, as special prosecutors seek to dismiss charges against all defendants, defense lawyers say.
The 9 a.m. hearing will be before visiting Judge William H. Wolff Jr. in Mahoning County Common Pleas Court. He conducted a half-hour conference call Thursday morning with lawyers for parties in the case.
A major issue in the case is recordings in the FBI’s possession, which special prosecutors say may relate to the Oakhill case. The special prosecutors are unable to obtain the tapes from the FBI and provide them to the defense.
“The tenor of the discussions that have been had between all counsel over the last two weeks has dealt with the inability of the state to secure those tapes and then disclose them to us,” said Lou DeFabio, lawyer for defendant John B. Reardon.
DeFabio said the prosecutors have an ethical and legal obligation to provide any relevant materials they know about to the defense in the pretrial exchange of evidence, known as discovery.
“Therein lies the problem,” DeFabio said.
The evidence can be incriminating or that which supports the defense.
Prosecutors can’t simply proceed to trial by saying they have enough evidence to win the case without introducing the tapes as evidence, DeFabio said. “Nobody’s really sure what is on all those tapes, even the prosecutors,” he said.
“If they had access to them, these issues wouldn’t have been coming up over the last several weeks,” DeFabio said of the prosecutors.
“They’re not in their possession, so how do they know what’s on there and what’s not on there?”
A common pleas judge, such as Judge Wolff, can’t force the FBI to release the tapes, DeFabio said, because the judge doesn’t have jurisdiction.
An FBI spokesman could not be reached to comment on whether the FBI is withholding the tapes because they pertain to an ongoing federal investigation.
If the judge approves the dismissal, DeFabio said it would be without prejudice, meaning the charges could be refiled later.
“No jeopardy has attached at this point” in the pretrial proceedings, DeFabio said, referring to the ban on putting defendants twice in jeopardy of life or liberty for the same offense. A ban on double jeopardy is contained in the 5th Amendment to the U.S. Constitution.
In the Oakhill case, five people and three companies are charged with conspiring to impede the move of the county’s Department of Job and Family Services from Cafaro Co.-owned rented quarters to the Mahoning County-owned Oakhill Renaissance Place.
Oakhill is the former Forum Health Southside Medical Center.
Those charged with conspiracy and other charges are Anthony M. Cafaro Sr., former president of the Cafaro Co.; the Cafaro Co. and two of its affiliates; county Commissioner John A. McNally IV; county Auditor Michael V. Sciortino; former county Treasurer Reardon; and former county JFS Director John Zachariah.
“We should be in court Monday, and hopefully, this matter will be put to bed,” McNally said after Thursday’s Mahoning County commissioners’ meeting.
“As it relates to Oakhill, my opinion has always been, and I believe the evidence has shown, that none of these public officials are guilty of any crime,” DeFabio said.
Two other defendants are charged only with money laundering and not with conspiracy. Those defendants are Flora Cafaro, part owner of the Cafaro Co. and sister of Anthony M. Cafaro Sr., and Atty. Martin Yavorcik.
That charge pertains to a purportedly concealed $15,000 campaign gift she made to his unsuccessful 2008 campaign for county prosecutor.
All Oakhill defendants have pleaded innocent.
“We will be addressing any issues in the case in open court on Monday,” said Paul M. Nick, executive director of the Ohio Ethics Commission and a special prosecutor in the case, who declined further comment.
It was not clear whether there would be any written motion to dismiss, or for leave to file such a motion issued by the special prosecutors before then.
A spokesman for the U.S. attorney’s office said correspondence between the Oakhill special prosecutors and U.S. Attorney Steven M. Dettelbach is not a public record that could be released to The Vindicator.
SDLqThe case you’re writing about is a state case, with which we have no substantive involvement,” added Mike Tobin, a public information officer for the U.S. attorney in Cleveland.