Wednesday, October 6, 2010
Related: Filings seek disclosure of public records
By Peter Milliken
YOUNGSTOWN
Lawyers for the Cafaro Co. and its related parties want Visiting Judge William H. Wolff Jr. to enforce grand-jury secrecy, contending a juror leaked information to The Vindicator.
The information came through an anonymous letter and through comments posted on Vindy.com in response to newspaper stories and editorial columns.
“This court’s prompt action is necessary to protect the defendants’ 6th Amendment right to a fair trial,” the eight lawyers said, referring in their joint motion to the 6th Amendment to the U.S. Constitution.
“These breaches of grand-jury secrecy threaten the future rights of the defendants to a fair trial uninfluenced by prejudicial pretrial publicity,” they said in the motion.
The joint motion, filed under seal Friday but disclosed Tuesday in court docket entries, represents the Cafaro Co.; The Ohio Valley Mall Co. and The Marion Plaza Inc., which are Cafaro Co. affiliates; Anthony M. Cafaro Sr., former Cafaro Co. president; and Flora Cafaro, Anthony Cafaro’s sister and part-owner of the Cafaro Co.
Except for Flora Cafaro, these defendants, along with Mahoning County Commissioner John A. McNally IV, county Auditor Michael V. Sciortino, former county Treasurer John B. Reardon, and John Zachariah, former county Job and Family Services director, are charged with criminal conspiracy to prevent or delay the county Job & Family Services move from Cafaro Co.-owned rented quarters to Oakhill Renaissance Place.
The county bought Oakhill in 2006 and moved JFS there in July 2007.
Flora Cafaro and Atty. Martin Yavorcik are charged with money laundering in connection with a concealed gift of $15,000 investigators allege she gave to Yavorcik’s unsuccessful 2008 campaign for county prosecutor.
The Cafaro lawyers allege that the anonymous letter, included in a Sept. 19 column by editorial writer Bertram de Souza, and the Vindy.com postings reveal information that only a grand juror or someone with direct knowledge of the grand-jury proceedings could know.
The anonymous letter to de Souza thanks him for a Sept. 5 column titled “Oakhill is not on trial” and says: “As a member of the Oakhill grand jury, it pains me not to be able to say anything to anyone. I just wanted you to know we did not indict a ham sandwich and that you are exactly right in your analysis. Please keep hitting this hard.
“I am so afraid that what we did will end up going nowhere and get lost in ‘politics as usual’ in the Mahoning Valley. We were ordinary people appalled at what undue influence cost the citizens of Mahoning County. Please keep up the good work.”
The nine grand jurors, who had been in session for seven months, deliberated on July 28 before unanimously voting that day in favor of all 73 counts in the indictment.
The Cafaro motion says the anonymous letter was written “to support the opinions of The Vindicator’s deeply biased chief columnist Bertram de Souza and to rally future [trial] jurors to convict the defendants that the grand jury charged.” The Oakhill criminal jury trial is set to begin June 6, 2011.
The motion asks Judge Wolff to do the following:
Appoint a neutral lawyer to independently investigate to identify the writer of the letter The Vindicator printed Sept. 19 “to determine if an action should be brought or prosecuted.” That special investigator would be empowered to retrieve or subpoena for Judge Wolff’s inspection the original grand juror letter and its envelope and any other documents provided by the anonymous grand juror.
Obtain or subpoena from The Vindicator or the Internet vendor servicing Vindy.com the identity of the commentator for Judge Wolff to determine whether that commentator was a member of the grand-jury hearing the Oakhill case.
Order preparation of transcripts of the secrecy oath given to the Oakhill grand jurors and any instructions they received concerning secrecy for the judge’s secret inspection.
“Instruct the offending grand juror or person exposed to grand-jury information of their continuing secrecy obligations under the law.”
Ensure that no further disclosures of grand-jury information occur without the judge’s authorization.
In their response, also filed under seal Friday and disclosed Tuesday, the Oakhill special prosecutors cite Rule 6E of the Ohio rules of criminal procedure, which refers to a secrecy obligation before an indictment is made public.
“Even federal law has long recognized that the need for secrecy is relaxed post-indictment,” wrote Oakhill special prosecutors Dennis P. Will, Paul Nick and Anthony D. Cillo.
Judge Wolff has set a hearing requested by the prosecutors on the secrecy issue for 9 a.m. Oct. 14 in Mahoning County Common Pleas Court.
After the Oakhill indictment was filed, The Vindicator sought and received permission from Judge James C. Evans, the grand-jury judge, to interview Michael T. Heher, grand-jury foreman, concerning details of the Oakhill case. Heher declined to grant the interview.