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Gains loses five issues before Ohio high court



Published: Mon, March 7, 2011 @ 12:01 a.m.

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Prosecutor Paul Gains

By Peter H. Milliken

milliken@vindy.com

COLUMBUS

The Ohio Supreme Court has ruled against Mahoning County Prosecutor Paul J. Gains on several procedural matters in a public- records complaint against him.

The complaint was filed by lawyers representing Cafaro interests in the Oakhill Renaissance Place criminal-conspiracy case.

The top court overruled Gains’ motion to delay the public-records case until the criminal case is resolved.

It also ruled last week against Gains’ alternative request that the Cafaro lawyers be barred from inquiring about the criminal case in their questioning of him or his assistant prosecutors, Gina Bricker and Linette Stratford, in depositions in the records case.

The top court also denied Gains’ motion to limit recording of those depositions to court stenography and to bar videotaping of those depositions, or, at least, to bar use of the tapes outside of court proceedings in the records case.

Bricker and Stratford have been subpoenaed to give sworn depositions on Thursday and Friday, respectively, in the downtown Youngstown office of a court stenography firm. Gains said Sunday that he expects to give his deposition Friday afternoon at that firm.

In his motion, Gains objected to the video because he doesn’t want a repeat of the paid broadcasts that occurred in 2007, when excerpts of pretrial depositions of Commissioner Anthony T. Traficanti and then-Commissioner David N. Ludt were broadcast by the Cafaro Co. on local TV stations.

Those broadcasts occurred before a civil trial, in which the Cafaro Co. tried unsuccessfully to rescind the county’s purchase of Oakhill.

The purpose of such uses of the tapes is “to embarrass and annoy,” wrote Gains, who has previously said he’ll seek re-election next year.

However, in a Sunday interview, Gains said: “We’re not afraid of being deposed.”

Joe Bell, director of corporate communications for the Cafaro Co., said he assumes the depositions will be videotaped. As to whether excerpts from them will be broadcast, Bell said: “I’ve heard absolutely nothing along those lines. I’ve not heard anyone suggest that.”

In yet another procedural ruling, the state supreme court denied Gains’ request for a 30-day extension of time to answer a series of written inquiries from the Cafaro lawyers in the records case.

The top court offered no explanations for the rulings it issued last Wednesday.

The records complaint was filed as a mandamus action at the top court by the Cafaro lawyers, led by Atty. John F. McCaffrey of Cleveland, to compel Gains to fulfill the lawyers’ records requests.

In the complaint, McCaffrey said Gains hasn’t completely fulfilled his records request in accordance with Ohio’s open records law.

However, Gains said he gave McCaffrey more than 8,000 pages, consisting of everything Gains believes is subject to the open records law.

McCaffrey is one of the lawyers defending the Ohio Valley Mall Co. and the Marion Plaza Inc., both affiliates of the Cafaro Co., in the criminal conspiracy case.

In the criminal case, special prosecutors allege those three companies; Anthony M. Cafaro Sr., former president of the Cafaro Co.; County Commissioner John A. McNally IV; County Auditor Michael V. Sciortino; former County Treasurer John B. Reardon; and former county Job and Family Services Director John Zachariah conspired to impede JFS’ move from Cafaro Co.-owned rented quarters to Oakhill.

The criminal jury trial is set to begin June 6 before Judge William H. Wolff Jr. in Mahoning County Common Pleas Court.

Oakhill is the former Forum Health Southside Medical Center, which the county bought in 2006 and to which JFS moved in 2007.

Gains argued unsuccessfully to the top court that the records case should be delayed until after the criminal trial because it is being used by the Cafaro defense lawyers to obtain information beyond what they’d typically get in the pretrial evidence exchange between the prosecution and the defense in the criminal case.

Gains cited a 1994 Ohio Supreme Court ruling “that a public-records request may not be used to obtain information a defendant is not entitled to receive under the criminal rules of procedure.”

The Cafaro lawyers know that Gains and Stratford are prosecution witnesses in the criminal case, Gains noted in a filing with the top court.

The Cafaro lawyers want to use the records-case depositions to question Gains and Stratford “about matters directly related to the defense of their clients in the criminal public-corruption case, but in the open and relaxed medium of civil discovery,” of evidence, and in the absence of the special prosecutors and Judge Wolff, Gains argued.


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