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If the case is a sham, why not let the public see and decide?

Published: Wed, October 5, 2011 @ 12:00 a.m.

Visiting Judge William H. Wolff Jr. spent the better part of a day in a Mahoning County Common Pleas courtroom listening to arguments on why all records should be sealed in the Oakhill Renaissance Place criminal conspiracy case.

Among the lawyers arguing for a seal were Martin G. Weinberg of Boston and George A. Stamboulidis of New York City, just two of Anthony M. Cafaro Sr.’s lawyers.

Among those testifying as to the high regard in which they hold Cafaro were former Judge Donald Ford of Trumbull County, Cuyahoga County Commissioner Tim Hagan, a Democrat, and Columbiana County Republican Party Chairman Dave Johnson.

Looking at this line-up brought a few thoughts to mind.

It should be noted that much of what the public should have seen in this case a long time ago has been kept from the public by virtue of a ruling by Judge Wolff that we would consider overly solicitous of Cafaro and some of his codefendants in this case. Immediately after documents known as bills of particulars were released regarding the charges against two of the Oakhill defendants, Cafaro’s lawyers filed to seal those documents from public view on the grounds that their release might preclude his getting a fair trial.

Lawyers for The Vindicator and 21 WFMJ-TV pointed out that if it became impossible to seat an impartial jury in Mahoning County because of pretrial publicity, the proper response would be to grant the defendants a change of venue. Nonetheless, Wolff sealed the bills of particulars and attempted a far more wide-ranging blackout of court documents. Even as he lifted part of his blackout, he coyly suggested that lawyers could avoid bickering over what was public and what wasn’t if only they would share paperwork between themselves without going through that bothersome middleman, the clerk of courts.

So, the bills of particulars remained under wraps as the case worked its way toward a trial date — while similar documents in cases involving less celebrated and less well represented clients were routinely made part of the record.

There was hope

The public could only take comfort in knowing that this information — assembled by investigators and prosecuting attorneys on the taxpayers’ dime in a case that involved the expenditure of public funds for office space and that called into question the relationship between Cafaro and three elected officials and one bureaucrat — would some day become public. Unfortunately, as trial preparation moved forward, the focus shifted to tape recordings made in a possibly parallel investigation. The defense sought access to those tapes, and when the FBI refused to release them, state prosecutors asked Wolff to dismiss the local case without prejudice, leaving open the possibility of refiling the charges at a later date.

Monday, Cafaro’s lawyers and those for one other defendant argued for the sealing of all records — those previously sealed or unsealed — and that this case be treated as if it never happened.

Aside from the fact that whatever is out there now exists on the Internet, and there is no putting that genie back in the bottle, we still wonder why anything in this case should remain under seal.

Let public in on the secret

We mentioned that Weinberg of Boston and Stamboulidis of New York were at the table for Cafaro. Just a few months ago, Weinberg declared that Cafaro “was not only presumed innocent; he was actually innocent.” And Stamboulidis characterized the state case as “pathetic.” Let the public see how pathetic the case was. Let the public decide whether prosecutors wasted their time and the public’s money on a witch hunt involving a prominent businessman, the companies he controlled and the servants the public elected to work on their behalf.

Is the public incapable of drawing its own conclusions? Cafaro’s lawyers were happy to put Ford, Hagan and Johnson on the stand to testify to Cafaro’s high character. None of the publicity involving the case so far has tainted their view. Are their powers of observation more finely attuned than the average newspaper reader or television viewer who, to hear the Cafaro lawyers tell it, have already been led astray?

There are other strong legal and practical arguments that were made by lawyers for the state and for the press, and we can only hope that those arguments prevail in front of a judge who has so far not shown himself to have a lot of faith in the discernment of the public.

But for us, the question remains: If there is no substance to the state’s case, why wouldn’t Cafaro, Weinberg, Stamboulidis et al be more eager to open the door and let the ensuing breeze topple the prosecution’s house of cards?

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