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Oakhill defense attorneys want judge to allow them to subpoena a confidential witness
CLEVELAND
Attorneys for Youngstown Mayor John A. McNally and ex-Mahoning County Auditor Michael V. Sciortino, defendants in the Oakhill Renaissance Place criminal-corruption case, want a judge to allow them to issue a subpoena to a confidential witness, without revealing his identity, to find out what he knows about secretly recorded tapes.
Judge Janet R. Burnside of Cuyahoga County Common Pleas Court, who is overseeing the case, agreed to a Sept. 21 hearing to resolve a long-standing dispute between defense attorneys and prosecutors over the amount of the tapes.
Defense attorneys have contended there are 2,000 hours of tapes, while prosecutors say the number is 700 hours and that all of them have been given to the defense.
Lynn Maro, who represents McNally, and John B. Juhasz, who represents Sciortino, wrote in a Monday filing that the confidential witness is someone with whom Sciortino “had numerous telephone calls and meetings – many more than what has been disclosed by the government in its three or four recordings in which Sciortino is either a participant or is present, and in which the informant was wearing a ‘wire.’”
The motion states the informant spoke to Sciortino “on the telephone many times – during peak political seasons, almost daily.”
Because of that, defense attorneys state “that not all pertinent records have been produced” and getting testimony from the confidential witness will prove that.
The subpoena would be issued “under seal,” meaning the witness wouldn’t be identified and would keep his confidentiality designation.
Dan Tierney, spokesman for the Ohio Attorney General’s Office, the case’s lead prosecutor, said, “We are reviewing [the motion]. We haven’t made a decision on objecting. The prosecutor has concerns the subpoena is overbroad, but we’ll address our concerns in court responses.”
The defense filing doesn’t address whether they would ask the judge to question the confidential informant in public or private. If Judge Burnside agrees to let the informant be questioned, she also would make the decision on the public-private issue.
Prosecutors have expressed concerns about the safety of the informant, saying, among other things, he was verbally threatened exactly seven days before the May 14, 2014, indictment was unsealed.
Juhasz and Maro wrote in the filing that they received recordings made by two confidential informants, but 133 tapes recorded by the second informant aren’t listed on the prosecutor’s notice of intent to use evidence.
The issue over the hours of tapes is because an initial Oakhill case was dismissed in July 2011 when prosecutors in that case said the FBI had “approximately 2,000 hours of tape recordings” related to at least one defendant, and wouldn’t turn them over. Since then, the Federal Bureau of Investigation provided those tapes.
But prosecutors say the number of hours of tapes is about 700, repeatedly saying 2,000 was an “off-the-cuff” estimate.
In June, prosecutors provided a letter from Deane Hassman, a Youngstown-based FBI special agent, who wrote that the bureau gave all the recordings it had to prosecutors, who then gave them to defense attorneys.
In the letter, Hassman wrote that the 2,000 hours was an incorrect estimate “based upon the knowledge of 10,000-plus telephone sessions and hundreds of face-to-face meetings.”
In the Monday filing, Juhasz and Maro wrote: “As the defendants will show at the evidentiary hearing, this letter is as significant for what it does not say as for what it does say, another installment in the long history of covert deception that has surrounded the tapes and this tape.”
The filing focuses on Sciortino and not McNally. Prosecutors have said there is no audio evidence against McNally.
But Maro, a law partner of Juhasz’s, signed the joint motion.
Not included in the motion is Martin Yavorcik, the third Oakhill defendant who is on a number of the tapes made by the confidential witness.
Prosecutors contend McNally in his previous capacity as a Mahoning County commissioner and Sciortino, both Democrats, as well as Yavorcik, a failed 2008 Mahoning County prosecutor candidate, were part of a criminal enterprise that illegally, and unsuccessfully, tried to impede or stop the move of the county Department of Job and Family Services from the Cafaro Co.-owned Garland Plaza to Oakhill Renaissance Place, the former Forum Health Southside Medical Center, owned by the county.
McNally, Sciortino and Yavorcik have pleaded not guilty to 83 total criminal counts including engaging in a pattern of corrupt activity, bribery, conspiracy, perjury and money laundering.
Juhasz and Maro had subpoenas issued last month to:
Wallace Sines and Hassman, FBI agents who were involved with investigating this matter. Defense attorneys wrote that “it is not known whether the federal government will honor” their “request and allow the two investigating FBI agents to testify.”
Paul M. Nick, executive director of the Ohio Ethics Commission; David P. Muhek, an assistant Lorain County prosecutor; and Lorain County Prosecutor Dennis Will. The three were special prosecutors in the first Oakhill case.
Dan Kasaris, the case’s lead prosecutor and a senior assistant attorney general. Tierney said Kasaris hasn’t been served and “when he is, we’ll file a motion to quash it.”