Vindy: Release Oakhill papers documents

Photo

Photo by: Robert K. Yosay

Visiting Judge William H. Wolff Jr.

By Peter H. Milliken

milliken@vindy.com

YOUNGSTOWN

A lawyer representing The Vindicator and 21 WFMJ-TV filed a motion to oppose a visiting judge’s orders that all nonroutine documents in the Oakhill Renaissance Place criminal conspiracy case be kept from public and press scrutiny.

The motion, filed Thursday in Mahoning County Common Pleas Court, asks Judge William H. Wolff Jr. to permit public access to bills of particulars detailing the charges against the defendants and to a motion to dismiss the indictment and memorandum in support of it. Items filed under seal are not available for public view.

To avoid pretrial publicity that he said might bias potential trial jurors, Judge Wolff, in September, ordered that all nonroutine filings in the case be made under seal.

The judge said he would then screen them and rule on any objections to disclosure from the parties to the case before making public all or parts of the filings. The trial is set to begin June 6.

“The seal order is inconsistent with settled Ohio law and the applicable First Amendment and common-law presumptions of public access,” wrote Attys. Marion H. Little Jr. and Christopher J. Hogan of Columbus on behalf of the newspaper and its broadcast partner.

Even if a judge finds during jury selection that an impartial jury can’t be seated in the defendants’ home county, Ohio law says “a less restrictive alternative to infringing on the public’s constitutional and common-law rights of access exists” by moving the trial to another county, the newspaper and TV station argue.

In an interview, Little said his filing would “ensure public access to these proceedings.”

“Simply put, defendants are not entitled to a private trial, cloaked in secrecy and beyond the scrutiny of the press and public,” Little said.

“Just this year, the Ohio Supreme Court reaffirmed that any concerns as to defendants’ right to a fair trial are readily addressed by a transfer of the case to one of Ohio’s other 87 counties,” Little added. “In short, no basis for closure possibly exists.”

A Mahoning County grand jury returned a 73-count indictment in the Oakhill case July 28. Five people and three companies 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 Oakhill.

Oakhill is the former Forum Health Southside Medical Center, which the county bought in 2006, moving JFS there in 2007.

The defendants charged with 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 JFS Director John Zachariah.

Two other defendants indicted in the case are not charged with conspiracy. They are Atty. Martin Yavorcik and Flora Cafaro, part-owner of the Cafaro Co. and sister of Anthony M. Cafaro Sr.

Flora Cafaro and Yavorcik are charged only with money-laundering in connection with an allegedly concealed $15,000 gift she gave to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.

A check of the files for the defendants in the Oakhill Renaissance Place criminal case at the Mahoning County Common Pleas Court clerk’s office found they contained numerous documents, many of them routine filings.

These include copies of the indictment, fingerprint cards for some of the suspects, routine notices of appearance by various lawyers, motions for admission of out-of-state lawyers, requests for bills of particulars and extensions of time for document filings, a notice of provision by the special prosecutors to each defendant of 36,089 pages of evidence and a witness list, the notice of recusal by the local judges and the notice of appointment of Judge Wolff.

The files, collectively approaching 8 inches of shelf space, are stored separately from the rest of the 2010 criminal cases. By far the thickest file is that of Anthony M. Cafaro Sr., the defendant named first in the indictment.

The Flora Cafaro file contains the bill of particulars detailing the charges against her and Yavorcik that was released before the judge issued his sealing order. Yavorcik’s case file, however, was temporarily in the office of a supervisory deputy court clerk.

The clerk’s office electronically images public documents in all of the Oakhill cases onto Courtview site as soon as they are filed and notes those documents filed under seal.

The clerk’s Courtview computer system shows that a bill of particulars for Zachariah was filed by the special prosecutors under seal Nov. 5 and that a motion to dismiss the indictment and a supporting memorandum of law were filed under seal Tuesday by Atty. Ralph E. Cascarilla of Cleveland, a lawyer for the Cafaro Co.

On Thursday, Zachariah’s lawyer, Roger Synenberg of Cleveland, filed under seal a motion to seal all bills of particulars and notices of intent to introduce evidence until after the trial.

Scott Grossen, administrator of the county clerk of courts office, said his office cannot release documents that a judge has ordered sealed, unless the judge approves their being unsealed.

The motion by The Vindicator and WFMJ specifically asks for unsealing of documents, maintaining there’s no basis for them to be withheld from public view.

In addition, the motion asks the judge to order that all future motions to seal documents or close court proceedings be made part of the public case record and noted on the public case docket. It asks that the public and press be given an opportunity to object to sealing or closure at an evidentiary hearing.

If the judge orders any sealing or closure, he should give a detailed explanation of his rationale “for overcoming the presumption of public access,” the motion says.