Ohio justices: the Oakhill 'sealing orders were improper’

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For a HISTORY OF THE CASE, click here.

By PETER H. MILLIKEN | milliken@vindy.com


The Ohio Supreme Court unanimously ordered a visiting judge to unseal documents, including the bills of particulars detailing criminal charges, in the Oakhill Renaissance Place corruption case, which was dismissed a year ago.

Court Opinion on Oakhill/Vindy

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Ohio Supreme Court unseals documents in Oakhill case

On Wednesday, the state’s top court ordered visiting Judge William H. Wolff Jr. of Mahoning County Common Pleas Court to unseal the documents and make them available to the media and the public, acknowledging “the judge ... overstated the prejudicial impact of the pretrial publicity.”

The decision was a major victory for The Vindicator and 21 WFMJ-TV, which filed the complaint with the top court seeking to have the documents made public.

Kathi McNabb Welsh, chief deputy clerk of courts, said she was prepared to release the unsealed documents as soon as Judge Wolff authorizes her in writing to do so. That could be today.

The criminal case, dismissed by special prosecutors July 11, 2011, but which could be refiled, alleged that some current and former Mahoning County officials accepted bribes from Anthony M. Cafaro Sr. and the Cafaro Co., of which Cafaro is the former president, in exchange for their efforts to keep the county’s Department of Job and Family Services as a tenant in the Cafaro Co.-owned Garland Plaza on Youngstown’s East Side.

JFS moved in July 2007 from Garland to the county-owned Oakhill Renaissance Place, which is the former Forum Health Southside Medical Center.

The charges were contained in a 73-count indictment returned by a county grand jury July 28, 2010. But as the case began, Judge Wolff sealed bills of particulars involving specific allegations against eight of the defendants, and redacted six pages of the state’s summary of the case in response to a Cafaro filing.

The newspaper and TV station fought to see those documents, since bills of particulars are commonly available in court cases, Vindicator Editor Todd Franko said.

“We’re pleased for us and for the community that the Supreme Court ruled in a way that we always believed was proper,” Franko said. “Judge Wolff clearly ran the proceedings in a way contrary to other cases we’ve pursued. It’s vindication that the state’s top judges agreed with us.”

“The Supreme Court confirmed our contention that the trial court judge had no authority to close the doors to a criminal proceeding and deny the public full access,” said Marion H. Little Jr. of Columbus, the lawyer for the newspaper and TV station.

“Now the public can read the other side of the story,” Little said. “The defendants wanted the public to only hear their side of the story, but not the prosecution’s. Now we get to read what the prosecution has to say.”

“We look at this decision as not that consequential,” said Joe Bell, director of corporate communications for the Cafaro Co. “It’s a release of documents that relate to a case that doesn’t exist anymore.”

“We just regard it all as pretty much fiction,” Bell said of the prosecution’s case as detailed in the bills of particulars. “We’re talking about documents that really are nothing more than a collection of unsubstantiated allegations by the prosecutors.”

The documents to be released “are no more and no less than the allegations of the prosecution,” said Attys. Martin G. Weinberg and George Stamboulidis, who represented Anthony M. Cafaro Sr. in the now-dismissed criminal case.

“These allegations were never contested in court because the prosecution elected to dismiss the entire case. Defendants are presumed innocent under our justice system,” the lawyers said in a prepared statement.

Now that the document-unsealing matter concerning the criminal case filings has been decided, Bell said he’d like the top court to turn its attention to a still-pending, public-records lawsuit filed with it by John McCaffrey, a Cafaro Co. lawyer, which seeks Oakhill-related records Mahoning County Prosecutor Paul J. Gains has declined to release.

In response to McCaffrey’s request, Gains said he already has released all available records that fit the definition of public records, which Gains said total more than 8,000 pages.

Gains was unavailable Wednesday to comment further.

In Wednesday’s ruling, the state’s top court affirmed the presumption of media and public access to court filings under Rule 43 of its rules of superintendence, which govern the state’s courts.

The court also said there wasn’t clear and convincing evidence to support any finding of prejudice against the defendants due to pretrial publicity if the bills of particulars were released.

Judge Wolff unsealed most of the sealed documents in the case in August 2011, but he kept bills of particulars — those dealing with specific allegations against Anthony M. Cafaro Sr., county Commissioner John A. McNally IV, county Auditor Michael V. Sciortino; former county Treasurer John B. Reardon, former county JFS Director John Zachariah; the Cafaro Co., and its subsidiaries, the Ohio Valley Mall Co., and the Marion Plaza Inc. — and a six-page portion of another document sealed from public view because he said their release could make it difficult or impossible to select an impartial trial jury in the county.

“In the absence of clear and convincing evidence establishing that the defendants’ right to a fair trial would be violated, the judge erroneously relied on conclusory, speculative assertions,” the top court ruled.

“The constitutional right of the defendants to a fair trial can be protected by the traditional methods,” the top court said.

Those methods are thorough questioning of potential jurors, postponements of the trial, relocation of the trial to another Ohio county if attempts to seat an impartial jury in Mahoning fail, proper jury instructions or sequestration of the jury overnight in a hotel, the top court said.

“The presumption of public access has not been overcome by the requisite clear and convincing evidence of a higher interest,” the court said. “The public is entitled to access to the sealed records under the superintendence rules.”

In the dismissed Oakhill criminal case, five people and three companies were charged with conspiring to impede JFS’ move from the Cafaro Co.-owned rented quarters to Oakhill, which the county bought in U.S. Bankruptcy Court in 2006.

The criminal case was dismissed in July 2011 because the special prosecutors from Lorain County and the Ohio Ethics Commission were unable to obtain tape recordings from the FBI that had to be shared with the defense lawyers in the pretrial evidence exchange, known as discovery.

The Vindicator’s ongoing fight for access to records in the Oakhill case earned the newspaper one of Ohio’s top journalism honors in 2011 when the Associated Press Society of Ohio honored the news company with the First Amendment Award.

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