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US Constitution to take lead role at Oakhill hearing hearing
YOUNGSTOWN
The balance between the constitutional rights of a free press and a fair trial will be the focus of Monday’s legal arguments over whether pretrial document filings in the Oakhill Renaissance Place criminal conspiracy case should be unsealed.
Those rights are in the Bill of Rights, specifically in the First and Sixth amendments to the U.S. Constitution, respectively.
These fundamental issues will be argued at 9 a.m. Monday before visiting Judge William H. Wolff Jr. in Mahoning County Common Pleas Court.
To avoid pretrial publicity he said might bias potential jurors, Judge Wolff has ordered all non-routine documents in the case filed under seal so he can screen them before making all or parts of them public.
Through their lawyer, Marion H. Little Jr., The Vindicator and 21 WFMJ-TV will argue that the press and the public’s right to know and the defendants’ right to a fair trial are of equal importance.
“The court is required to afford equal weight to the public’s First Amendment rights and the defendant’s Sixth Amendment rights, and to choose a course of action that preserves both,” Little argued in a written filing Friday.
“Instead of cloaking the proceedings in secrecy, the proper course where prejudicial pretrial publicity is alleged” is a careful and thorough jury selection process and, if necessary, moving the trial to another county, he argued.
In the 73-count Oakhill indictment, five people and three companies are charged with conspiring criminally to impede the move of the Mahoning County Department of Job and Family Services from Cafaro Co.-owned rented quarters to Oakhill. Oakhill is the former Forum Health Southside Medical Center, which the county bought in 2006. JFS moved there in 2007.
Little was responding to a filing in which the Cafaro interests suggested their Sixth Amendment right to a fair trial takes precedence over the public’s First Amendment right of access to criminal proceedings and judicial records.
Little said a recent Ohio Supreme Court decision rejects the Cafaro interests’ argument that the defendants’ right to be tried by an impartial jury in the county where the crimes were allegedly committed precludes moving the trial elsewhere.
The newspaper and TV station aren’t alone in opposing secrecy in the Oakhill case.
The special prosecutors have filed a brief in opposition to the Cafaro interests’ motion to seal all bills of particulars and notices of intent to introduce evidence until after the trial.
Also to be discussed in Monday’s hearing is a sealed motion by the Cafaro interests to dismiss the indictment.
Facing conspiracy and other charges are Anthony M. Cafaro Sr., former president of the Cafaro Co.; the Cafaro Co. and its affiliates, the Ohio Valley Mall Co. and The Marion Plaza Inc.; County Commissioner John A. McNally IV; County Auditor Michael V. Sciortino; former County Treasurer John B. Reardon; and former county JFS director John Zachariah.
Among the items still sealed are the bills of particulars detailing the charges against Zachariah, Reardon and Sciortino.
Two defendants, Flora Cafaro, part-owner of the Cafaro Co. and sister of Anthony Cafaro, and Atty. Martin Yavorcik, are charged only with one count of money laundering, and not with conspiracy.
The money-laundering charge pertains to an allegedly concealed $15,000 gift from Flora Cafaro to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
Lewis Katz, a Case Western Reserve University law professor, said the U.S. and Ohio supreme courts have ruled that, in general, court proceedings can only be closed if a compelling reason to do so is expressed before the closure. Katz said he believes that principle also applies to sealing of documents.
“Therefore, a broad, general order closing all pre-trial filings is not likely to be sustained,” upon appeal, he said.
Katz said he believes a judge could delay disclosure of documents for a short time to decide whether there’s a compelling reason to keep a document sealed, but not for the entire pre-trial period.
“There’s a presumption in favor of open proceedings,” Katz said.
“I think that applies to motions and documents as well,” he concluded.