By Peter H. Milliken
Special prosecutors in the Oakhill Renaissance Place criminal conspiracy case tried to intimidate Mahoning County Common Pleas Court judges by calling two of the them as grand jury witnesses, according to a recent court filing by lawyers for the Cafaro interests.
The prosecutors’ decision to subpoena Judges R. Scott Krichbaum and Maureen A. Sweeney to testify before the grand jury hearing the Oakhill case “was a deliberate act of intimidation — against not just those judges, but the rest of the bench as well and a gross violation of the judicial privilege,” the Cafaro lawyers wrote.
That charge was made in a Friday motion by the Cafaro lawyers to dismiss the Oakhill indictment due to alleged prosecutorial misconduct. A hearing on that motion will be at 9 a.m. July 11 before visiting Judge William H. Wolff Jr. in Mahoning Common Pleas Court.
In response to the Cafaro motion, Special Prosecutor Paul Nick, Ohio Ethics Commission director, said, “We deny the allegations, and we’ll respond in a court filing as the court has directed.” June 17 is the special prosecutors’ deadline to respond.
“I never felt intimidated,” Judge Sweeney said Monday. “I don’t know what their purpose was,” she said, referring to the prosecutors’ decision to question her at the grand jury. “I can’t read their minds.”
Judge Sweeney said she was declining to comment further because the Oakhill case is pending before Judge Wolff and she didn’t believe it is proper for one judge to comment publicly on a matter before another judge.
“It’s a matter of pending litigation, and it would be inappropriate for me to make a comment about a pending case,” Judge Krichbaum said.
In the Oakhill case, three companies, including the Cafaro Co., and five people, including two current and two former county officials, 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 county-owned Oakhill.
The county bought Oakhill in 2006, and JFS moved there in 2007.
Oakhill is the former Forum Health Southside Medical Center.
The Cafaro motion says Judges Krichbaum and Sweeney were questioned under oath before the grand jury exclusively about their confidential discussions with the other judges concerning the initial extension of the grand jury’s term of service.
That questioning was “a willful breach” of the constitutionally required separation of powers between the executive and judicial branches of government, the Cafaro lawyers wrote.
“The targeting of these two judges inappropriately suggested judicial impropriety” to the grand jury, the Cafaro lawyers added.
The Cafaro motion does not cite any sources for its information concerning secret grand-jury proceedings.
Cafaro lawyers complained to Judge Wolff last fall about breaches of secrecy by Oakhill grand jurors, who communicated their views about the case through The Vindicator and vindy.com. In response, Judge Wolff called the grand jurors into court to remind them of their secrecy oaths.
One of the Cafaro lawyers, Ralph Cascarilla of Cleveland, declined to comment beyond Friday’s filing, saying he was adhering to Judge Wolff’s wishes by not commenting.
The grand jury that heard the Oakhill case initially was scheduled for a four-month session from January through April 2010.
At the request of the special prosecutors, who sought an extension to allow for continuity of evidence presentation before the same grand jury, Judge James C. Evans, the judge overseeing the grand jury, extended the grand jury’s term indefinitely April 21.
“The other judges were alarmed Judge Evans unilaterally granted this extension without their knowledge or consent and that he failed to set an end date for the grand-jury term,” the Cafaro lawyers wrote without attributing this information to anyone.
“The Cafaro attorneys were not present in our judges’ meetings, so they really don’t know what went on in there,” Judge Sweeney observed.
Shortly after Judge Evans granted the extension, all eight county common pleas judges amended Judge Evans’ order by setting a June 3, 2010, termination date for the grand jury, with no further extensions allowed.
After that, Judges Krichbaum and Sweeney, who had questioned the reasons for the extension, were subpoenaed to testify before the grand jury at the end of May 2010, the Cafaro lawyers said.
Special Prosecutor Dennis Will then requested a second extension of 60 to 90 days, and the judges granted an extension through July 30. The grand jury issued the 73-count Oakhill indictment on July 29, 2010, and adjourned.
The alleged attempt to intimidate the judges “incurably tainted and abused the grand jury process,” the Cafaro lawyers alleged.
“There were no improprieties that I was made aware of or became aware of,” with regard to the functioning of the Oakhill grand jury, Judge Evans said. “I know of no intimidation,” Judge Evans said, adding that he never heard any of the judges report any attempt at intimidation.
Extending the grand jury term was necessitated by the complexity of the Oakhill case and the apparent need to present the entire case to the same grand jury to preserve continuity, he said.
Judge Evans recalled he asked the grand jurors if they could stay for an extension, and the grand jurors said they could stay and favored the extension.
“I presumed that the grand-jury judge at that time had the authority to extend it,” Judge Evans said. As a courtesy, however, after the other common pleas judges asked him about the extension, he agreed to all common pleas judges making the extension decision, he recalled.
“I’m surprised that there’s any indication of what they [Judges Krichbaum and Sweeney] testified to because that should have been kept secret,” Judge Evans said.