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Defense attorneys in Oakhill case claim prosecutors abusing confidentiality rules
CLEVELAND
Attorneys for two defendants in the Oakhill Renaissance Place criminal corruption case accuse prosecutors of abusing confidentiality rules with evidence, and providing The Vindicator with some of that supposedly secret information.
In a court filing, the attorneys for Youngstown Mayor John A. McNally and Mahoning County Auditor Michael V. Sciortino wrote: “This untamed conduct makes Daniel Ellsberg’s limited release of the ‘Pentagon Papers,’ thought by some at the time to be outrageous, appear harmless.”
Ellsberg provided a top-secret study of the nation’s policies about the Vietnam War to the New York Times in 1971.
The Monday motion from the attorneys — Lynn Maro for McNally and John B. Juhasz for Sciortino — claims prosecutors marked too many documents as “counsel only,” meaning it can’t be shared with anyone.
The attorneys wrote that prosecutors filed a document with the Cuyahoga County Clerk of Courts that included transcripts of a secret recording that have that designation.
“Among the items that the government claims should be protected by the ‘counsel only’ prophylactic are recordings, the transcripts of which the Youngstown daily ‘newspaper,’ The Vindicator, claims have been publicly released,” they wrote.
They also wrote that the information was given to the newspaper before it was on the public docket.
But the filing was in the possession of the clerk’s office before being given Friday to the media, said Dan Tierney, spokesman for the Ohio Attorney General’s Office, which is prosecuting the case with the Cuyahoga County prosecutor.
It didn’t make it to the court clerk’s website until a few days later, he said.
“A public record is a public record if it is online or on paper,” he said. “Some court websites are very [quick to file documents] and others not so much. It takes time to upload documents. But that doesn’t change the fact it is a public record.”
Tierney said Tuesday that none of the information provided Friday to the newspaper is labeled “counsel only,” and the AG’s office didn’t do anything improper when it gave the court document to The Vindicator and other news organizations, including 21 WFMJ-TV and Warren’s Tribune Chronicle.
A delay between the time a court record is filed in Cuyahoga County and when it is available on its clerk of courts’ website can take hours or days, said David Marburger, a Cleveland-based attorney who specializes in public records and is The Vindicator’s attorney.
“I file electronically with Cuyahoga County and it doesn’t show up right away,” he said. “It’s not instantaneous. But it’s clearly a public record provided it doesn’t violate a court secrecy order.”
Kathi McNabb Welsh, Mahoning County deputy clerk of courts, said at her office it can take a week for a document to get on the website.
“But they’re public records when the date is stamped,” she said. “If it’s filed with the clerk, it’s a public record and available for public inspection.”
Like other news organizations watching the Oakhill case, The Vindicator, under provisions of Ohio’s Sunshine Laws, has asked to be apprised of filings — in lieu of waiting for them to appear online — since the clerk’s office is in Cuyahoga County.
Attempts Tuesday by The Vindicator to obtain comments from Maro and Juhasz were unsuccessful.
Maro and Juhasz also wrote that the government is overusing the “counsel only” provision, thus not allowing the attorneys to properly build a defense.
“What can be a greater abuse of discretion than to claim that something is secret and then reveal it?” Maro and Juhasz wrote.
Tierney disputed that.
“The only reason we’ve sought for records to be labeled ‘counsel only’ is the safety of witnesses,” he said. “At least one witness has been threatened. If we’re providing items [to the media], it’s not ‘counsel only.’”
There are about 700 hours of recordings made by confidential informants related to this case that have been given to attorneys for the defendants and most are designated by prosecutors as “counsel only,” Maro and Juhasz wrote.
The defendants’ attorneys wrote that the ‘counsel only’ label prevents them from doing their job as they cannot, under criminal rules, “even approach any of the individuals in the hundreds of hours of recorded conversations and recount any of the information from the recordings.”
They added: “Certainly, designation of such a large volume of the discovery as ‘counsel only’ is an abuse of discretion. The prejudice to the defendants should be obvious. It is impossible for counsel to investigate this case without the ability to actually interview witnesses, play the recordings and ask them about what they said, or what was said about them in the discovery provided.”
Mark Lavelle, attorney for Martin Yavorcik, the other defendant in this case, filed a motion last week asking a judge to permit him to share all evidence — including those with the “counsel only” label — with whomever he wants.
Under state criminal rules, a private hearing with a judge on the question of prosecuting attorneys’ abusing the discretion of “counsel only” material can’t occur earlier than seven days before a trial is to start. There is no trial date yet for this case.
But Maro and Juhasz wrote that to wait until seven days before the trial would result in a continuance, and want Judge Janet R. Burnside of Cuyahoga County Common Pleas Court, who’s overseeing this case, to resolve the issue soon.
There is a pretrial hearing scheduled for Friday.
The other issue is “counsel only” means attorneys can’t share that confidential evidence with their clients, Maro and Juhasz wrote.
In their filing, the defense attorneys wrote that prosecutors said on Sept. 15 that they could share “counsel only” information with their clients, and prosecutors followed that up with an email. However, they point to court rules that do not permit them to share those items with their clients.
Judge Burnside asked prosecutors to submit a court filing about sharing the secret evidence with their clients, but that has yet to be done, Maro and Juhasz wrote.
“They’re allowed to share them with their clients,” Tierney said. “Because the defendants are attorneys, they could be considered counsel and be permitted to see the ‘counsel only’ documents. We’ve already told them they could do it.”
Prosecutors charged Yavorcik, Sciortino and Youngstown Mayor John A. McNally in his previous capacity as a county commissioner with 83 counts including engaging in a pattern of corrupt activity, conspiracy, bribery, perjury, money laundering and tampering with evidence.
The three have pleaded not guilty to the charges.
They are accused of being part of a group that conspired to illegally impede or stop the move of the Mahoning County Department of Job and Family Services from the Cafaro Co.-owned Garland Plaza to Oakhill Renaissance Place, the former Forum Health South Side Center.