Visiting Mahoning County Common Pleas Court Judge William H. Wolff Jr. from Kettering
By Peter H. Milliken
The trial judge in the Oakhill Renaissance Place criminal-conspiracy case stands by his decision to keep the bills of particulars sealed from public view, saying their release would jeopardize defendants’ right to a fair trial in Mahoning County.
Visiting Judge William H. Wolff Jr. of Mahoning County Common Pleas Court made his arguments in a filing last week at the Ohio Supreme Court, which was made on his behalf by Carley J. Ingram, an assistant Montgomery County prosecutor.
Judge Wolff, of Kettering, was responding to a request by The Vindicator and 21 WFMJ-TV for a Supreme Court order that would unseal all documents and proceedings in the Oakhill case.
Judge Wolff said his order to keep the bills of particulars sealed “is narrowly drawn to serve the compelling governmental interest of assuring the defendants a fair trial” in an environment of intense pretrial publicity.
The bills of particulars, which prosecutors have filed in the Oakhill case, spell out in detail the charges in the indictment and the alleged illegal conduct of each defendant.
In the Oakhill criminal case, five people and three companies are charged with conspiring to impede the move of the Mahoning County Department of Job and Family Services from Cafaro Co.-owned rented quarters to the county-owned Oakhill Renaissance Place. The criminal trial is set to begin Sept. 6.
A state Supreme Court order, known as a writ of prohibition, should be issued against Judge Wolff “to remedy the unconstitutional infringement by respondent of the public’s right of access to ongoing judicial proceedings,” the newspaper and TV station argued in their January complaint.
If the writ isn’t granted, defendants in the criminal case “will have succeeded in effectively turning a presumptively public criminal process into a virtually private proceeding,” argued Marion H. Little Jr., the lawyer for the newspaper and TV station.
If a judge is concerned about prejudice due to pretrial publicity, the remedy is to move the trial to another Ohio county, the Ohio Supreme Court ruled in April 2010, Little argued.
Although Judge Wolff unsealed other documents in the Oakhill case at the request of the newspaper and TV station, he said he has kept the bills of particulars sealed from public view for several reasons.
In ordering that the bills stay sealed, Judge Wolff said they contain allegations that may be inadmissible in the trial; their release would make selection of an impartial jury in Mahoning unlikely; and the effort to seat an impartial jury should begin in this county.
“No First Amendment presumption of openness applies to the sealed documents,” Judge Wolff said in last week’s filing, referring to the First Amendment to the U.S. Constitution, which establishes free-press rights.
“While there exists a qualified right to access to court proceedings under the First Amendment, that right to access is not absolute,” Judge Wolff wrote.
The judge also said bills of particulars are given by the prosecution to the defense in the pretrial evidence-sharing process, known as discovery, to help the defense prepare for trial, and the Ohio Public Records Act does not require their disclosure.
Although the judge argues public filing of bills of particulars is not legally required, such bills are routinely filed publicly by the Mahoning County Prosecutor’s office, even in the highest-profile capital murder cases.
In Montgomery County, where Judge Wolff was a common pleas judge and a 2nd District Ohio Court of Appeals judge before his retirement in 2009, the county prosecutor’s office routinely files bills of particulars publicly, even in high-profile cases, Ingram acknowledged.
Ingram, who has been an assistant prosecutor there for 30 years, however, said the bills there generally don’t go into great detail because the prosecution provides the defense with detailed police reports as part of discovery.
Also filing arguments last week with the top court in favor of keeping the bills sealed were several Oakhill defendants: The Cafaro Co., its affiliates, the Ohio Valley Mall Co. and the Marion Plaza Inc.; Anthony M. Cafaro Sr., former president of the Cafaro Co.; and Flora Cafaro, Cafaro’s sister and part-owner of the Cafaro Co.
Major points in the Cafaro arguments were:
The right of the defendants to a fair trial under the Sixth Amendment to the U.S. Constitution outweighs the public’s right to access to pretrial evidence-sharing documents, such as bills of particulars.
The judge’s sealing order was backed by clear and convincing evidence presented in a hearing by Hugh Martin, associate professor of journalism at Ohio University.
The First Amendment right of public access to court proceedings has not been extended to court documents.
Neither federal nor Ohio law recognizes a right of public access to pretrial evidence-sharing documents.
In the Oakhill case, Anthony Cafaro, the Cafaro Co. and the two affiliates, county Commissioner John A. McNally IV, county Auditor Michael V. Sciortino; former county Treasurer John B. Reardon; and former county JFS Director John Zachariah are charged with conspiracy and other charges.
Flora Cafaro and Atty. Martin Yavorcik are charged only with a single count of money laundering and not with conspiracy.
The money-laundering charge pertains to an alleged concealed $15,000 gift she gave to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
The only bill of particulars that was filed publicly in the Oakhill case was that pertaining to Yavorcik and Flora Cafaro.
After that bill was filed, the judge ordered the bills for all other defendants sealed at the defense lawyers’ request.