ORIGlNAL. t1a"i o U 2b1 i CLERK OF COURT SUPREME COURT 0F 0HI0. Case No IN THE SUPREME COURT OF OHIO

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1 ORIGlNAL IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. THE VINDICATOR PRINTING CO., et al., Relators, Case No (Original Action in Prohibition and Mandamus) vs. THE HONORABLE WILLIAM H. WOLFF, JR., et al., Respondents. RELATORS' MERIT BRIEF Marion H. Little, Jr. ( ) Christopher J. Hogan ( ) Zeiger, Tigges & Little LLP 3500 Huntington Center 41 South High Street Columbus, Ohio Counsel for Relators The Vindicator Printing Co. and WFMJTelevision, Inc. Carley J. Ingram ( ) Assistant Prosecuting Attorney Montgomery County Prosecutor's Office P.O. Box West Third Street Dayton, Ohio Counselfor Respondent Judge William H. Wolff, Jr. Martin G. Weinberg (Pro Hac Vice) Law Office of Martin G. Weinberg, P.C. 20 Park Plaza, Suite 1000 Boston, MA Counsel for Intervening Respondent Anthony M. Cafaro, Sr. Ralph E. Cascarilla ( ) Darrell A. Clay ( ) Walter & Haverfield LLP The Tower at Erieview 1301 East Ninth Street, Suite 3500 Cleveland, OH Counsel for Intervening Responden The Ca a-" J. Alan Johnson (Pro Hac Vice) Cynthia Reed Eddy (Pro Hac Vice) Johnson & Eddy 1720 Gulf Tower 707 Grant Street Pittsburgh, PA John F. McCaffrey ( ) Anthony R. Petruzzi ( McLaughlin & McCaffrey, LL Eaton Center, Suite Superior Avenue Cleveland, OH t1a"i o U 2b1 i CLERK OF COURT SUPREME COURT 0F 0HI0 Counsel for intervening Respondeni Counsel for Intervening Respondents Ohio Valley and Marion Plaza, Inc. Flora Cafaro Mall Company

2 TABLE OF CONTENTS TABLE OF AUTHORITIES vii INTRODUCTION... 1 STATEMENT OF FACTS... 3 A. The Underlying Criminal Action-The Oak Hill Case... 3 B. The Oalc Hill Defendants' Effort To Obtain Private Pre-Trial Proceedings While Simultaneously Seeking To Poison The Potential Jury Pool In Their Favor The Oak Hill Defendants' Effort To Cloak The Oak Hill Case In Secrecy PAGE a. The Oak Hill Defendants' Improper Letter Request For Closure Of The Criminal Proceedings... 5 b. The Oak Hill Defendants Obtain Presumptive Closure Orders Without A Public Closure Hearing... 6 c. As A Result Of These Orders, The Oak Hill Defendants Filed Basic Documents Under Seal The Oak Hill Defendants' Simultaneous Efforts To Publicly Disseminate Self-Servicing Messages As To Their Innocence The Oak Hill Defendants' Counsel's Simultaneous Effort To Use The Ohio Public Records Act C. The Vindicator's Efforts To Challenge The Process D. Respondent Wolff Holds A Hearing On Relators' Challenges, But Ultimately, Continues The Presumption Of Closure The December 6, 2010 Hearing a. Martin's Concessions Regarding The Vindicator's Limited Reach And The Public Interest Involved... 14

3 PAGE b. Martin Did Not Dispute The Truth Of The Vindicator's Stories c. Martin's Reliance Upon Information Outside The Record d. Martin Could Not Offer An Opinion As To The Likelihood Of Prejudice To The Potential Jury Pool Respondent Wolff's December 21, 2010 Order The December 21, 2010 Order Did Not Reverse The Presumption Of Closure Effectuated By Respondent Wolff's Prior Orders ARGUMENT PROPOSITION OF LAW NO. 1: The Public Has A Presumptive Right Of Access To Filed Court Records That Is Independently Recognized Under The Constitution, Common Law, And Ohio Superintendence Rule 45, And This Presumption Applies To, Inter Alia, The Filed Bills Of Particulars Authorities Relied Upon to Support Relators' Proposition of Law No. 1: A. The First Amendment Right Of Access Applies To Court Records State ex rel. The Repository Division of Thompson Newspapers, Inc. v. Un er, 28 Ohio St. 3d 418 (1986) Storer Communications. Inc. v. Presser, 828 F.2d 330 (6Ih Cir. 1987) National Broadcasting Company. Inc. v. Presser, 828 F.2d 340 (6t Cir. 1987) Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 106 S. Ct (1986) United States v. Biaggi, 828 F.2d 110 (2d Cir. 1987) In re The Charlotte Observer v. Bakker, 882 F.2d 850 (41h Cir. 1989) ii

4 PAGE The Associated Press v. United States District Court For Central District of California, 705 F.2d 1143 (9a` Cir. 1983) United States v. Antar, 38 F.3d 1348 (3`d Cir. 1994) B. The Common Law Also Establishes A Presumption Of Openness Federal Trade Commission v. Standard Financial Management Corp., 830 F.2d 404 (Vt Cir. 1987) In re Knoxville News-Sentinel Co., 723 F.2d 470 (6a' Cir. 1983) C. A Presumption Of Access To All Filed Documents Also Is Recognized Under Ohio Superintendence Rule D. The Documents Subject To Respondent Wolff's Seal Order Were Filed With, And Otherwise Related To The Court's Adjudicatory Functions, And Thus, They Are Subject To These Presumptions Of Access... 3 PROPOSITION OF LAW NO. 2: Where These Presumptions Of Access Apply, A Closure Order May Be Properly Issued Only After Compliance With Specific Procedures, And The Issuance Of Specific, Evidentiary Findings Supporting Closure-A Test Respondent WolfPs December 21 Order And Protocol Failed To Satisfy... 4 Authorities Relied Upon to Support Relators' Proposition of Law No. 2: A. Specific Procedures, Including Notice To The Public And An Opportunity For The Public To Be Heard, Must Be Followed Before The Constitutional Presumption Of Access May Be Overcome State ex rel Plain Dealer Publishiniz v. Floyd, 111 Ohio St. 3d 56 (2006) In re Knoxville News-Sentinel, Inc., 723 F.2d 470 (6u' Cir. 1983) Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) State ex rel. Dispatch Printinlz Company v. Lias, 68 Ohio St. 3d 497 (1994) State ex rel. Dispatch PrintingCompany v. Louden, 91 Ohio St. 3d 61 (2001) iii

5 PAGE 1. The Party Seeking Closure Must Present Specific Proof As To The Need Therefor, And The Court Must Issue Specific Findings As To The Need Therefor And The Lack Of Availability Of Alternative Measures Before Issuing A Closure Order a. Specific Evidentiary Findings Are Required And A Judge's Personal "Predilections" Are Insufficient To Justify Closure Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 ( 1984) Press-Enterprise Co. v Superior Court of California, 478 U.S. 1 (1986) Storer Communications v. Presser, 828 F.2d 330 (6"` Cir. 1987) State ex rel. Toledo Blade Co. v. Henry County Court of Common Pleas, 125 Ohio St. 3d 149 (2010) National Broadcasting Company, Inc. v. Presser, 828 F.2d 340 (6t' Cir. 1987) Brown & Williamson Tobacco Corp v. Federal Trade Commission, 710 F.2d 1165 (6th Cir. 1983) Joy v. North, 692 F.2d 880 (2"d Cir. 1982) State ex rel. Plain Dealer Publishing Co. v. Geauga County Court of Common Pleas, Juvenile Division, 90 Ohio St. 3d 79 (2000) b. Reasonable Alternatives To Closure, In The Context Of Alleged Prejudicial Publicity, Include Voir Dire And Change Of Venue State v. Bayless, 48 Ohio St. 2d 73 (1976) Bayless v. Ohio, 438 U.S. 911 (1978) State v. Landrum, 53 Ohio St. 3d 107 (1990) State v. Treesh, 90 Ohio St. 3d 460 (2001) iv

6 State v. Gross, 97 Ohio St. 3d 121 (2002) PAGE State ex rel. Dayton Newspqpers Inc. v. Phillips, 46 Ohio St. 2d 457 (1976) B. Superintendence Rule 45 Permits Closure Only Upon "Clear And Convincing" Evidence That A "Higher Interest" Outweighs The Presumption Of Access C. Respondent Wolff Has Failed to Satisfy These Mandatory Requirements Respondent Wolff Failed To Satisfy The Mandatory Requirements For Sealing The Court Records At Issue In His December 21, 2010 Order Zelenka v. Industrial Commission, 165 Ohio St. 587 (1965) Azzano v. O'Malley-Clements, 126 Ohio App. 3d 368 (8ch Dist 1998) The Protocol Established By Respondent Wo1fPs January 10, Also Violates Established Precedent PROPOSITION OF LAW NO. 3: The Documents Filed As Part Of The Oak Hill Case Are Public Records, Subject To Disclosure Under The Ohio Public Records Act Authorities Relied Upon to Support Relators' Proposition of Law No. 3: State ex rel. Youngstown City School Dist. Bd. Of Educ. v. City of Youn g st own, 84 Ohio St. 3d 5l (1998) State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d 30 (1985) State ex rel. WBNS TV, Inc. v. Dues, 101 Ohio St. 3d 406 (2004) State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382 (2004) CONCLUSION CERTIFICATE OF SERVICE v

7 ADDENDUM Ohio Revised Code ADD-1 Ohio Revised Code ADD-2 Ohio Revised Code ADD-12 Ohio Criminal Rule 18...ADD-14 Ohio Criminal Rule 47...ADD-15 Ohio Superintendence Rule 44...ADD-16 Ohio Superintendence Rule 45...ADD-19 vi

8 TABLE OF AUTHORITIES CASES PAGE Azzano v. O'Malley-Clements, 126 Ohio App. 3d 368(8' Dist 1998)...33 Bavless v. Ohio, 438 U.S. 911 ( 1978) Brown & Williamson Tobacco Corp. v. Federal Trade Commission, 710 F.2d 1165 (6'0 Cir. 1983)...27 Federal Trade Commission v. Standard Financial Management Corp., 830 F.2d 404 ( ls` Cir. 1987)...22 Globe Newspqper Co. v. Superior Court, 457 U.S. 596 (1982)...24 In re Knoxville News-Sentinel, Inc., 723 F.2d 470 (6a` Cir. 1983)...23, 24 In re The Charlotte Observer v. Bakker, 882 F.2d 850 (4t" Cir. 1989)...22 Joy v. Nort h, 692 F.2d 880 (2"d Cir. 1982)...27 Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)...11 National Broadcasting Company, Inc. v. Presser, 828 F.2d 340 (6' Cir. 1987)...21, 26, 27 Press-Enterprise Co. v Superior Court of Califomia, 478 U.S. 1(1986)...21, 25, 26 Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984)...26, 27 State ex rel. Cincinnati Enquirer v. Winkler, 101 Ohio St. 3d 382 (2004)...35 State ex rel. Coles v. Granville, 116 Ohio St. 3d 231 (2007) State ex rel. Dayton Newspmers Inc. v. Phillips, 46 Ohio St. 2d 457 ( 1976) State ex rel. Dispatch Printing Company v. Lias, 68 Ohio St. 3d 497 (1994)....25, 34 State ex rel. Dispatch Printing Company v. Louden, 91 Ohio St. 3d 61 (2001)...25 State ex rel. Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d 30 (1985)...35 vii

9 CASES PAGE State ex rel News Herald v. Ottawa Cty. Court of Common Pleas, 77 Ohio St. 3d 40 (1996)...36 State ex rel Plain Dealer Publishing Co. v. Geauga County Court of Common Pleas, Juvenile Division, 90 Ohio St. 3d 79 (2000)...1, 8, 27 State ex rel. Plain Dealer Publishing v. Floyd, 111 Ohio St. 3d 56 (2006)...24 State ex rel. The Repository Division of Thompson Newspapers Inc. v. Unger, 28 Ohio St. 3d 418 (1986)...20 State ex rel. Toledo Blade Co. v. Henry County Court of Common Pleas, 125 Ohio St. 3d 149 (2010)...26, 29, 30, 33 State ex rel. WBNS TV. Inc. v. Dues, 101 Ohio St. 3d 406 (2004)...35 State ex rel. Youngstown City School Dist. Bd. Of Educ. V. City of Youngstown, 84 Ohio St. 3d 51 (1998)...34 State v. Ba 1^, 48 Ohio St. 2d 73 (1976)...28 State v. Gross, 97 Ohio St. 3d 121 (2002)...28 State v. Landrum, 53 Ohio St. 3d 107 (1990)...28 State v. Treesh, 90 Ohio St. 3d 460 (2001)...28 Storer Communications, Inc. v. Presser, 828 F.2d 330 (6`h Cir. 1987)...20, 26 The Associated Press v. United States District Court For Central District of California, 705 F.2d 1143 (9th Cir. 1983)...22 United States v. Antar, 38 F.3d 1348 (3`d Cir. 1994)...22 United States v. Biaggi, 828 F.2d 110 (2d Cir. 1987)...22 Zelenka v. Industrial Commission, 165 Ohio St. 587 (1965)...32 STATUTES PAGE Ohio Revised Code Ohio Revised Code , 35, 26 Ohio Revised Code viii

10 Ohio Criminal Rule Ohio Criminal Rule , 8, 36 Ohio Superintendence Rule Ohio Superintendence Rule passim ix

11 INTRODUCTION "Judge Henry abused his discretion by closing further juvenile proceedings... based on findings that were not supported by sufficient evidence and constituted little more than his personal predilections concerning closure of juvenile proceedings in general. Therefore, we grant relators a writ of prohibition to prevent Judge Henry and the juvenile court from barring the public and press from delinquency proceedings... " f State ex rel Plain Dealer Publishing Co. v. Geauga County Court of Common Pleas Juvenile Division, 90 Ohio St. 3d 79, (2000) (emphasis added).] The same is true here. The Defendants in the underlying criminal action from which this action arises offered a single witness in support of their extraordinary request for closure. Such witness readily conceded that he had no opinion or basis for otherwise opining that any publicity generated by Relators, The Vindicator Printing Company (publisher of the Vindicator newspaper) and WFMJ Television (collectively, the "Vindicator"), with respect to the subject documents would have any impact, let alone a prejudicial impact, on the potential jury pool in Mahoning County and/or the remaining 87 counties within the state of Ohio: Q You have not reached an opinion, have you, that the dissemination of that information prevents the impaneling of an impartial jury in this case; have you? A. I have no idea. That's not my area of expertise. Q... You don't have an expert opinion that the jury pool has been tainted in any respect; do you? A. Again, I don't know. This is not my area of expertise. Q. And you, likewise, would not render an opinion that to the extent that the court would open these proceedings, that would have any adverse impact on the impaneling of a jury; do you?

12 A. I do not know. [Joint Record Of Evidence No. 30 (December 6, 2010 Hearing Transcript ("Hearing Tr.") at pp Yet, Respondent the Honorable William H. Wolff ("Respondent Wolff') somehow concluded that permitting the public to exercise its constitutional right of access to certain court records, including among other things, Bills of Particulars filed in response to a defense motion sustained by Respondent Wolff, would lead to a substantial probability that the Defendants' right to a fair trial in Mahoning County would be prejudiced. Based on this conclusion, Respondent Wolff issued an order sealing the subject records, and then maintained a protocol that effectively established a presumption of closure as to other filings, and indeed, the closure proceedings themselves. But, there was no evidence in the record to support Respondent's conclusion as to this perceived result. Rather, as made clear below, Respondent Wolff's closure order was based on nothing other than his own personal predilections as to the impacts of the Vindicator's coverage of the information in subject records, in contravention of the responsibilities imposed upon him by the United States and Ohio Constitutions, the common law, and this Court's recent amendment to the Ohio Rules of Superintendence. In doing so, Respondent Wolff has unwittingly contributed to the Defendants' effort to ensure that the potential jury pool is actually prejudiced in their favor. Indeed, as discussed below, the Defendants' aggressive attempt to prevent public and media access to the criminal proceedings-on the asserted ground of avoiding prejudicial pre-trial publicity-is, in reality, 1 In fact, the witness, who was offered as an expert, otherwise based his opinions, at least in part, on documents and information from outside of the actual record in the case. As discussed in more detail below, such opinions are inadmissible under Evidence Rule

13 just one oomponent of their effort to manipulate and control the public message as it relates to their alleged criminal misconduct. The other component involves the Defendants' issuance of press releases proclaiming their innocence in the hope of influencing the media's reporting on the case. At bottom, however, neither the criminal Defendants' desire to control and manipulate the pretrial message, nor Respondent Wolff's predilections as to the prejudicial impact of the Vindicator's media coverage justify the closure orders at issue. To the contrary, for multiple, independent reasons, including the presumptions of access established by the U.S. and Ohio constitutions, the common law, and recently-enacted Superintendence Rule 45, as well as the Ohio Public Records Act, the Vindicator is entitled to access the subject court records. Thus, a writ of prohibition should issue to vacate Respondent's unlawful orders and procedures relating to closure, and a writ of mandamus should issue to compel the production of the subject public records and all other documents filed as part of the underlying criminal case. STATEMENT OF FACTS A. The Underlying Criminal Action-The Oak Hill Case. In late July 2010, a Mahoning County grand jury returned a 73-count indictment charging seven persons and three organizations, including public officials, with multiple felony and misdemeanor charges stemming from an alleged conspiracy to prevent or delay the relocation of the Mahoning County Jobs and Family Services offices (the "Oak Hill Case"). The Defendants include, but are not limited to, are: Anthony M. Cafaro, Jr.; The Cafaro Company (A); Ohio Valley Mall Co. (B); The Marion Plaza, Inc (C); and Flora Cafaro (I) (collectively, the "Oak Hill Defendants"). [Joint Record of Evidence ("JR") 1-5.] The Honorable William H. Wolff is the presiding judge over this matter. 3

14 The Oak Hill Case indictment alleges, among other things, the Oak Hill Defendants' involvement in a pattern of corrupt activity and conspiracy through money laundering, bribery, and soliciting improper compensation relating to an effort to "block the proposed relocation of Mahoning County offices to a premises commonly referred to as `Oak Hill[.]"' [JR 6 (Indictment at Count 11.] Specifically, the underlying alleged criminal conduct involved, among other things, an alleged effort by Defendant Cafaro and others to block the proposed move of county offices in an effort to keep them at a Cafaro-owned property. [See JR 41 (Dec. 6, 2010 article).] Thus, the case involves not only allegations relating to bribery and corruption involving governmental officials, but it is intricately connected with the expenditure (and, specifically, the alleged improper expenditure) of public funds. Relators in this case are The Vindicator Printing Co., and WFMJ Television, Inc. The Vindicator Printing Co. publishes the Vindicator, a daily newspaper distributed principally in Mahoning County. [Relators' Submission of Evidence ("RE") 16 (affidavit of Mark Sweetwood).] Relators report news and information to the general public of Mahoning County, and, as such, they have a great interest in following the Oak Hill case given the issues of alleged public corruption involved therein. [Id.] B. The Oak Hill Defendants' Effort To Obtain Private Pre-Trial Proceedings While Simultaneously Seeking To Poison The Potential Jury Pool In Their Favor. From virtually the outset of the criminal proceedings, the Oak Hill Defendants have engaged in thinly-veiled efforts to control the public message as it relates to their alleged guilt or innocence, and to taint the potential Mahoning County jury pool in their favor. Such effort is revealed in, among other things, the blatant inconsistencies in the positions the Oak Hill Defendants have taken. 4

15 1. The Oak Hill Defendants' Effort To Cloak The Oak Hill Case In Secrecy. a. The Oak Hill Defendants' Improper Letter Request For Closure Of The Criminal Proceedings. A key component of the Oak Hill Defendants' plan to control the public message has been their effort to prevent public disclosure of documents filed in the Oak Hill Case that provide any actual detail as to the allegations against them. This effort is made clear in several respects. First, on or about September 2, 2010, Defendants Ohio Valley Mall Company and Marion Plaza, Inc. (joined by other Defendants, as well) submitted a request, in letter format, to Respondent Wolff asking the court to issue a "directive" i.e., order) closing certain aspects of the criminal proceedings (the "September 2 letter"). [JR-9.] The September 2 letter was signed by attorney John F. McCaffrey, who happens to be a Relator in a public records Mandamus Action against the Mahoning County Prosecutor's Office currently pending before this Court, State ex rel. John McCaffery v. Mahoning County Prosecutor's Office and Paul Gains, Case No Significantly, the Oak Hill Defendants did not submit this request as an actual motion filed as part of the public record, but instead they submitted it privately in violation of Rule 47 of the Ohio Rules of Criminal Procedure. That rule states, in pertinent part: "An application to the court for an order shall be by motion. A motion, other than one made during trial or hearing, shall be in writing unless the court permits it to be made orally...." (Emphasis added.) The State of Ohio responded to such letter by letter dated September 7, [JR-10.] This letter was, likewise, not originally filed as a matter of public record. These letters were ultimately not filed with the Clerk of Courts until December 6, 2010-after the Vindicator began investigating 5

16 the circumstances relating to the issuance of closure orders in September [JR-1, Docket Sheet, at 2-3.] Purportedly, the information sought to be protected related to Bills of Particulars, although as explained below, the ultimate closure orders extended well beyond such documents. We add that the subject Bills of Particulars were filed in response to a motion that was filed by the Oak Hill Defendants and, ultimately, sustained by Respondent Wolff. [RE-3, 4 (Joint Motion for Bill of Particulars, and Memorandum in Support of Same); JR-1, Docket sheet in Case No. 800, at 11 reflecting that pending motions were sustained.] Nonetheless, citing the danger of allegedly prejudicial pre-trial publicity, the Oak Hill Defendants, by way of the September 2 Letter, sought presumptive sealing of these filed documents, without a prior evidentiary hearing, so that they could have a subsequent opportunity to review them and "move to redact" portions thereof. [JR-9.] b. The Oak Hill Defendants Obtain Presumptive Closure Orders Without A Public Closure Hearing. Next, the Oak Hill Defendants convinced Respondent Wolff to issue presumptive orders sealing court records, after closed-door discussions with counsel, and without public notice or participation. Specifically, after receiving the Oak Hill Defendants' September 2 letter and the State of Ohio's September 7, 2010, letter, Respondent Wolff on September 9, 2010, conducted a closed-door closure hearing with counsel for the parties. The public was not invited and the discussions were not conducted in a public courtroom. No notice of the Oak Hill Defendants' de facto motion for a presumptive sealing of filed documents was made on a publicly-available docket. 6

17 Nonetheless, following this non-public proceeding, Respondent Wolff issued an order requiring, in pertinent part, that all documents filed shall be filed under seal (the "September 9 Order"). [JR-11.] The September 9 Order stated, in pertinent part, that: All filings in this case shall be under seal with the exception of filings that are clearly procedural and cannot possibly implicate Defendants' concern about receiving a fair trial. [Emphasis added.] Although the Order referenced "Defendants' concern about receiving a fair trial," it did not suggest that any evidence was considered by Respondent Wolff, and included no particularized findings of a compelling need or the lack of less restrictive alternatives to support this presumptive closure. [Id.] Likewise, the public and press were afforded no opportunity to object to the propriety of this presumptive and blanket closure of filed court records. Five days later, on September 14, 2010, following an editorial that appeared in the Vindicator, Respondent issued another order in which he provided further explanation as to the "protocol" with respect to the filing of documents under seal (the "September 14 Order"): The protocol allows counsel for the defendants to object in writing to content in the State's filings that they consider unduly prejudicial such that it should not be part of the public record prior to trial. The State has the opportunity to respond in writing to these objections. The court will rule on the defendants' objections promptly after the State responds or the deadline for response expires. The court contemplates ruling on the objections without oral arpument unless argument is requested by counsel. If the court concludes that any material should not be made part of the public record prior to trial, it will order that material to be redacted from that filing and the balance of the filing will, as redacted, be unsealed. Although the foregoing discussion anticipates objections by the defendants, the State may utilize the same protocol as to defendants' filings. [JR-12 (September 14 Order, at 1-2) (emphasis added).] 7

18 Again, although Respondent Wolff cited his concern about finding "fair and impartial jurors without preconceived notions of how this case should be decided that they cannot set aside due to pretrial publicity," he held no public (let alone evidentiary) hearing before issuing the September 14 Order. [Id. at 1.] In his September 14 Order, Respondent Wolff again provided no specificity as to the substantial need for such closure, or as to the availability of less restrictive alternatives. Instead, he once again spoke only in terms of generalities, noting that: This case has attracted and will continue to attract significant media coverage.... The concern of the court is that fair and impartial jurors can be found in Mahoning County, i.e. that they cannot set aside due to pretrial publicity. [Id. at 1.] In sum, under the protocol established by Respondent Wolff by way of his two September Orders, which were issued without public notice and without the filing of a formal motion in contravention of Criminal Rule 47, all filings in the criminal case were to be made under seal, without a prior evidentiary hearing and/or proof by clear convincing evidence of the need for such closure. Then, only after the documents had been filed under seal, the parties-but not the public or press-would have an opportunity to argue as to which portions of such filings would remain sealed until trial. Finally, Respondent Wolff would rule on the parties' arguments apparently without providing an opportunity for the public and/or press to be heard on the issue of sealing the records. Given the absence of findings to support this extraordinary relief, this closure was obviously predicated on Respondent Wolff s personal predilections, just as this Court found improper in State ex rel Plain Dealer Publishing Co. v. Geauga County Court of Common Please, Juvenile Division, supra. 8

19 c. As A Result Of These Orders, The Oak Hill Defendants Filed Basic Documents Under Seal. Predictably, the result of this protocol was that clearly public documents essential to the court's adjudicatory functions were filed under seal, including the November 16, 2010 joint motion of Defendants Cafaro and others to dismiss the indictment in Case No. 800; the November 10, 2010 Motion of Defendants to Temporarily Seal all Bills of Particulars and Notices of Intent to Introduce Rule 404(B) Evidence Until After Trial; as well as a bill of particulars filed on November 5, [JR-22, 20 (November 16 and November 10 motions).] In fact, even a motion to enlarqe time was filed under seal. [JR-42 (December 21, 2010 Decision and Entry, at 1).] in secrecy. The Oak Hill Defendants had, thus, succeeded in their efforts to cloak the Oak Hill Case 2. The Oak Hill Defendants' Simultaneous Efforts To Publicly Disseminate Self-Servicing Messages As To Their Innocence. The other key component of the Oak Hill Defendants' plan has been their effort to use the media to publicly disseminate their own proclamations of innocence, while at the same time successfully seeking to block the media's and public's access to the actually filed court records. Specifically, at the same time they were successfully seeking to cloak with secrecy the proceedings in the Oak Hill Case on the unsubstantiated premise that, absent closure, significant pretrial publicity relating to Court filings would prejudice their right to a fair trial by a jury of their peers in Mahoning County, several of the Oak Hill Defendants, themselves, were attempting, through press releases, to taint the potential jury pool in their favor by using the media as an outlet for declaring their innocence. 9

20 At the December 6, 2010, hearing before Respondent Wolff, which is discussed further below, the lone witness called by the Oak Hill Defendants, Hugh Martin, revealed that the Oak Hill Defendants had been waging a pubic relations campaign proclaiming their innocence, including the use of press releases. [JR-30 (December 6 hearing transcript) ("Hearing Tr.").] Q So in this particular case you are aware that the defendants that are sitting in this courtroom today complaining about pretrial publicity have, in fact, been issuing press releases hoping to generate media attention regarding the positions they have taken; right? A. Yes. Q. And, in fact, in the press releases that have been issued by the defendants they have proclaimed their innocence; have they not? A. Yes. [Hearing Tr. pp ] Indeed, Martin, Defendants' expert, was forced to concede that the press releases issued by the Oak Hill Defendants were intended to attract media attention and cause the republication of the content from the press release. [Id. at 11, 123.] As Martin stated, the purpose of issuing a press release in the first instance is that the preparing party hopes that the media will ultimately report on the content of the press release. [Id.] He also conceded that the Oak Hill Defendants had produced infomercials to communicate their position and that the infomercials had been cablecast. [Id. at 119.] In short, by flooding the media market with information the Oak Hill Defendants viewed as favorable to their defense, while at the same time seeking to prevent public access to the actual criminal case filings, the Oak Hill Defendants sought not to prevent potential bias among the potential jury pool, but to create a bias in their favor. In other words, they sought to create 10

21 the very type of "preconceived notions" Respondent Wolff, by way of his September 2010 Order, hoped to prevent. 3. The Oak Hill Defendants' Counsel's Simultaneous Effort To Use The Ohio Public Records Act. Attorney McCaffrey's mandamus action currently pending before this Court is also insightful. State ex rel. McCaffrey, supra. Ironically, at the same time his clients have sought and obtained presumptive closure of filed criminal court records, McCaffrey has requested and now seeks a Writ of Mandamus directing the Mahoning County Prosecutor's office to turn over substantial documents, including calendars and time records, from the prosecutor's files under the Ohio Public Records Act. 2 [See Complaint filed in Case No ] Counsel's efforts on his clients' behalf only further demonstrates the Oak Hill Defendants' game of seeking public access to information they believe to be favorable and the inconsistencies in the Oak Hill Defendants' position seeking to prevent such access to other information. C. The Vindicator's Efforts To Challengc The Process. In light of the protocol implemented by Respondent Wolff's September Orders, the Vindicator instituted efforts to gain access to the documents that had been presumptively filed or provided to the Court under seal. For instance, by letter dated November 15, 2010, the Vindicator served a records request upon Respondent Wolff. [JR-21 (the "November 15 Public Records Request").] Such request sought: all (a) filings made; (b) orders issued or made, irrespective of whether journalized; and/or (c) documents submitted to the Court in State of Ohio v. Yavorcik et al., Case No CR H, Mahoning County Common Pleas (Wolff, J.). 2 This Court may take judicial notice of other cases "to establish the fact of such litigation and related filings."' State ex rel. Coles v. Granville, 116 Ohio St. 3d 231, 236 (2007) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir. 1991)). 11

22 The November 15 Public Records Request was intended to capture, among others items, those documents potentially submitted by the Oak Hill Defendants to Respondent Wolff, but curiously not filed with the Clerk of Courts. By letter dated November 17, 2010, the Vindicator served a second records request upon Respondent Wolff, which sought the opportunity to inspect the following public records: all (a) filings made; (b) orders issued or made, irrespective of whether journalized; and/or (c) documents submitted to the Court in State of Ohio v. Anthony M. Cafaro, Jr., et al., Case No CR and subsets A - I, Mahoning County Common Pleas Court (Wolff, J.). We had previously made a public records request in Case No CR 00800(H). [JR-23.] By letter also dated November 17, 2010, the Vindicator served a records request upon the Clerk of Court, which sought the opportunity to inspect the following public records: We noticed the filing of the following documents on November 5, 2010, and November 16, 2010: 1. Bill of Particulars for John Zachariah filed Under Seal by Plaintiff (filed 11/5/10 in Case No CR 00800(G)); 2. Memorandum of Law in Support of Joint Motion of Anthony Cafaro Sr., The Cafaro Co., Ohio Valey Mall, Marion Plaza Inc. and Flora Cafaro to Dismiss Indictment Filed Under Seal (filed 11/16/10 in Case No CR 00800); and a. Joint Motion of Anthony Cafaro Sr., The Cafaro Co., Ohio Valey Mall, Marion Plaza Inc. and Flora Cafaro to Dismiss Indictment Filed Under Seal (filed 11/16/10 in Case No CR 00800). We are not able to access these documents and thus we ask that you please provide us a copy for inspection or, if it is more convenient for you, simply have a copy made and sent to the undersigned. We will obviously pay you for all copying expenses. 12

23 My assistant, Terri Thompson, can provide you a Federal Express number if that is helpful. [JR-24.] Finally, by letter dated November 22, 2010, the Vindicator served another records request upon Respondent Wolff, which sought the opportunity to inspect the following public records: the following document filed on November 18, 2010, in Case No CR G: Motion to Join Motion and Memorandum of Law in Support of Motion to Temporarily Seal All Bills of Particulars and Notices of Intent to Introduce Rule 404(B) Evidence Until After Trial Filed by Defendant Under Seal. [JR-26.] The Vindicator was not provided access to the documents it sought through its initial records requests. Thus, on November 18, 2010, the Vindicator filed a Motion for an Order Vacating the September 9 and September 14, 2010 Sealing Orders and Permitting Public Access to Bills of Particulars And Motion to Dismiss Indictment. [JR-25.] D. Respondent Wolff Holds A Hearing On Relators' Challenges, But Ultimately, Continues The Presumption Of Closure. 1. The December 6, 2010 Hearing. In response to the Vindicator's Motion, Respondent Wolff scheduled an evidentiary hearing, which was conducted on December 6, 2010 (the "December 6 hearing"). This was the first opportunity the public or press was afforded to challenge the secret proceedings resulting from the September closure orders. As part of the December 6 hearing, and in support of their arguments for closure of Court records, the Oak Hill Defendants presented one witness, who was all form and no substance as to the issue to be considered, and ultimately rendered, as explained below, incompetent opinions in 13

24 violation of Evidence Rule 703. Indeed, Martin, a journalism professor from Ohio University, struggled to say anything in support of the Oak Hill Defendants' secrecy efforts. His testimony was very limited, even as to those items to which he actually offered an opinion. The upshot of Martin's opinion was that the Vindicator has a monopoly on print media, and that the Vindicator's coverage of the underlying case has been "tough"-testimony cited by Respondent in his December 21, 2010 Decision and Order. [Hearing Tr. at 70, 106; JR-42 (December 21, 2010 Decision).] However, Martin's actual testimony revealed the obvious flaws associated with and/or immateriality of such opinions. a. Martin's Concessions Regarding The Vindicator's Limited Reach And The Public Interest Involved. First, as to the supposed reach of the Vindicator's coverage, Martin conceded that less then 50 percent of Mahoning County actually received the paper: Q: When we have the Vindicator for the Monday through Saturday at 40 percent, does that reflect that 60 percent of the individuals or households in this county would not receive the Vindicator? A. Sixty percent of the occupied households would not receive it. [Hearing Tr. p. 149.] Martin, likewise, conceded that the Vindicator's circulation was focused primarily in three counties: Mahoning, Trumbull, and Columbiana. [Id. at 143.] Thus, he agreed that individuals living in Ohio's other 85 counties would receive minor, if any, coverage of the Vindicator. [Id.] As to Relator WFMJ, Martin merely stated that less than 10 percent of those people who could view the station's programming actually view it. [Id. at 157.] He also conceded that he did not know the counties that comprised the Mahoning Valley designated marketing area 14

25 ("DMA") and that he was unaware of any cable retransmission consent agreements with respect to the station's programming. [Hearing Tr. at 137, 138.] Thus, Martin testified that he could not offer an opinion as to the penetration levels of WFMJ in Ohio's other 87 counties, let alone what impact Relators' coverage could conceivably have on potential jurors in those other counties. See, id. at 138, 118, ] Such testimony made clear that the Vindicator's access, and resulting news coverage, could have no conceivable impact on jurors in the other 80 plus Ohio counties where the Oak Hill Case could be tried 3 b. Martin Did Not Dispute The Truth Of The Vindicator's Stories. Second, Martin's opinion that the Vindicator's coverage was somehow "tough" on Defendants was qualified by his testimony that he did not dispute the truth of the stories. Q So you can't tell us whether the statements made in the Vindicator are true or false; can you? A. I cannot tell you if they are true or false. [Hearing Tr. p. 162.] In fact, one of the items Martin complained about was actually an "opinion" from the Vindicator, not a news story [Hearing Tr. at 125], and it was expected the Vindicator would extensively cover a story involving public corruption. Q In fact, in terms of your position as a journalist, you would have always taken the position that one of your principal roles was to educate or inform the public as to matters involving potential public corruption? 3 Nor could it cause inconvenience. Respondent Wolff is presiding by assignment-he is not from Mahoning County. The same is true for the prosecutor-he was assigned from a different county. [JR-10; RE-2 (Affidavit of David Muhek).] Even most of the attorneys representing the Oak Hill Defendants are not located in Mahoning County. 15

26 A. That's one of the reasons journalism exists. Q That is one of the reasons that journalism exists from your perspective is that the media service is the surrogate for the public at large; correct? A. Correct. Q And in that surrogate role it's one of the responsibilities of the media, in your opinion, to keep a tab, if you will, on the activities of government officials - A. Yes. [Hearing Tr. pp ] c. Martin's Reliance Upon Information Outside The Record. Even for the opinions offered, Martin conceded that the facts or data upon which his opinions were based included a number of out-of-court statements and/or other materials not even a part of the record in the case. For instance, Martin testified that he relied upon surveys with respect to "pass-along" rate, conducted by a media research finn; U.S. census data; and materials from the Federal Communications Commission that were outside of the record of the case. [Hearing Tr. at 74, 85, 87, ] Martin testified that he also relied upon newspaper articles that were not included among the exhibits offered into evidence. [Id. at ] As explained infra, such reliance ran afoul of Evidence Rule 703 and rendered Martin's opinions, such as they were, incompetent. d. Martin Could Not Offer An Opinion As To The Likelihood Of Prejudice To The Potential Jury Pool. However, on the key points related to the issue of closure, Martin conceded that he had no knowledge of and could not offer an opinion with respect to the likelihood that any such media coverage would taint the jury pool or prevent the Oak Hill Defendants from obtaining a fair trial, even in Mahoning County: 16

27 Q You have not reached an opinion, have you, that the dissemination of that information prevents the impaneling of an impartial jury in this case; have you? A. I have no idea. That's not my area of expertise.... You don't have an expert opinion that the jury pool has been tainted in any respect; do you? A. Again, I don't know. This is not my area of expertise. Q. And you, likewise, would not render an opinion that to the extent that the court would open these proceedings, that would have any adverse impact on the impaneling of a jury; do you? A. I do not know. [Hearing Tr. pp ] In fact, Martin had done nothing to even advise himself on the central point of the hearing-prcjudice to Defendants. Q Okay. And for purposes of your testimony today I take it that you did not, for example, conduct any type of survey or polling; did you? A. No. [Hearing Tr. p. 116.] You can't tell us what the demographics are, for example, of the likely jurors in this case? A. No. And you can't tell the court to what extent the likely jury pool in this case would have read any of the articles that appeared in the Vindicator; can you? A. No. 17

28 Q Or you, likewise, can't tell the court to what extent any of the likely jurors in this case would have seen any coverage from the news station regarding this particular case; can you? A. No. [Hearing Tr. p. 118.] In sum, the Oak Hill Defendants presented no evidence to demonstrate that pre-trial publicity, even "tough" publicity, as it relates to Court filings or proceedings, would in any way prejudice their right to a fair jury trial. In fact, with the exclusion of their sole witness' testimony, they offered no evidence whatsoever. 2. Respondent Wolffs December 21, 2010 Order. On December 21, 2010, Respondent Wolff issued an Order (the "December 21 Order") in which he ordered the unsealing of certain exhibits attached to one of the Oak Hill Defendants' motions that was filed under sea]. [JR-42.] In the same Order, however, Respondent Wolff further found, inter alia, that the filed bills of particulars and Rule 404(B) notices should remain sealed, and not subject to public access. In doing so, Respondent Wolff determined that these aled documents, including Bills of Particulars filed in response to a motion and court order, were not subject to a presumption of public access, and he otherwise concluded that, even if they were, "publication of these documents would lead to a`substantial probability that the defendants' right to a fair trial' in Mahoning County `would be prejudiced."' [Id. at 4.] In support of the latter conclusion, and despite Martin's concessions, quoted above, Respondent Wolff generally cited Martin's testimony in concluding that: "1) the Vindicator and its website, Vindy.com, have a virtual monopoly on the dissemination of local news in Mahoning County; [and] 2) The Vindicator's coverage of this case has been intense and "very tough" on the Defendants." [Id. at 4.] He also 18

29 cited his own review of the Vindicator's Web site, and noted the "numerous" articles and editorials about "this case and related matters" found thereon. [Id.] At bottom, Respondent Wolff based the closure on his own personal predilections. Respondent Wolff, like Martin, cited no evidence and made no specific findings as to how the existence of substantial or "tough" media coverage in Mahoning County would prejudice the Oak Hill Defendants' ability to obtain a fair trial, if the subject documents are released. To the contrary, Respondent Wolff merely inferred that, where such coverage exists, a prejudicial impact on the Oak Hill Defendants' ability to obtain a fair trial necessarily results. Finally, in direct contravention of this Court's precedent, Respondent Wolff rejected change of venue as a reasonable alternative to closure, noting simply that "the court's effort to seat an impartial jury should begin in Mahoning County." [Id. at 5.] 3. The December 21, 2010 Order Did Not Reverse The Presumption Of Closure Effectuated By Respondent Wolff's Prior Orders. Although Respondent Wolffs December 21 Order purported to prospectively vacate the September 9 and 14 Orders, ultimately, as implemented by Respondent Wolff, such Order merely continued the improper presumption of closure effectuated by his prior Orders. Specifically, on January 5, 2011, the Oak Hill Defendants filed, under seal, a Motion for Order: (1) Redacting Three References Contained In State's Motion to Enlarge Time in Which to Comply With Criminal Rule 16 Discovery Requirements and for an Order Allowing Disclosure; and (2) The Entry Of A Protective Order Goveming Disclosure And Use Of Bills of Particulars Filed Under Seal. [RE-11.] The Vindicator opposed this Motion, but prior to filing its opposition, the Vindicator, by letter dated January 10, 2011, sought clarification from Respondent Wolff that its brief should be filed as a matter of public record, inasmuch as it squarely related to the issue of closure, a 19

30 presumptively-public proceeding. [JR-44.] Respondent Wolff, however, answered by advising the Vindicator to file its memorandum under seal. By to counsel for all parties dated January 10, 2011, Respondent Wolff stated that: The court intends that determinations of whether a document should be sealed in whole or in part will be made in camera. Accordingly, the Cafaro defendants' motion to that effect was filed under seal, and your memorandum contra should likewise be filed under seal. The clerk has been identifying documents filed under seal on the clerk's public docket by title and will continue to do so, according your clients and the public with notice of what is filed but not the content. [JR-43.] Respondent Wolff's protocol, as reflected in his January 10 , thus presum t^ established not only the closure of records filed with the Court, but of the closure proceedings, themselves. Thus, the presumption of closure, first established by the September 9 and September 14, 2010 Orders, was effectively continued. ARGUMENT PROPOSITION OF LAW NO. 1: The Public Has A Presumptive Right Of Access To Filed Court Records That Is Independently Recognized Under The Constitution, Common Law, And Ohio Superintendence Rule 45, And This Presumption Applies To, Inter Alia, The Filed Bills Of Particulars. A. The First Amendment Riiiht Of Access Applies To Court Records. The presumption of access to the records at issue is found in three separate sources. First, the First Amendment to the United States Constitution, as well as Article I, Section 11 of the Constitution of Ohio, establish a strong presumption of public access to court proceedings, especially criminal cases. See State ex rel. The Repository, Division of Thompson Newspaners, Inc. v. Unger, 28 Ohio St. 3d 418, 420 (1986) ("The right of the public to attend criminal trials is also implicit w^ithin the guarantees of the First Amendment."); Storer Communications, Inc. v. 20

31 Presser, 828 F.2d 330, 336 (6th Cir. 1987) ("As the Supreme Court has repeatedly emphasized, there is a strong presumption of openness in criminal trials."). This constitutional right of access applies equally to in-court proceedings as well as court records. National Broadcasting Companv Inc. v. Presser, 828 F.2d 340 (6th Cir. 1987), is on point. There, NBC sought access to sealed records of criminal pretrial proceedings that concerned the potential disqualification of a judge and "conflicts of interest faced by the attorneys for the three defendants." Id. at 341. The parties sought to file the motions under seal "on the ground that they would generate additional prejudicial pretrial publicity." Id. at 341. The district court granted leave to do so. When NBC made application for access to the sealed documents, the district court denied its request on the basis that disclosure would make it "virtually impossible to impanel an impartial jury" and would "create far more than a`reasonable probability of prejudice' to the defendants." Id. at 342. On appeal, the Sixth Circuit applied the test from Press-Enterprise Company v. Superior Court of Califomia, 478 U.S. 1, 106 S. Ct (1986), wherein "the Court identified two `complimentary considerations" in determining whether there is a qualified right of access to preliminary criminal proceedings, and then prescribed the standards to be applied to a closure order if the threshold criteria are satisfied. The complimentary considerations are whether there is `a tradition of accessibility' and whether public access `plays a significant positive role in the functioning of the particular process in question."' National Broadcasting Companv v. Presser, 828 F.2d at , citing PressEnterprise Company v. Superior Court of California, 478 U.S. 1, 8 (1986). 21

32 After analysis, the court concluded that both of the "complimentary considerations" existed and that a qualified right of access to the motions existed. "We know of no tradition that hearings on motions to disqualify for bias are closed and that all documents pertaining to such motions are sealed. To the contrary, such proceedings are usually held in open court...." Id. at 344. Further, the court found the second prong of the "complimentary considerations" was satisfied, concluding that "there is a significant positive role to be played by having such proceedings conducted in open court." Id. at 345. The Sixth Circuit therefore found that each of the sealed pleadings was subject to a qualified First Amendment right of access. Other courts have, similarly, recognized that documents filed in connection with pre-trial motions are subject to a First Amendment right of access. For instance, in United States v. Biaggi, 828 F.2d 110, 114 (2d Cir. 1987), the Court recognized that: "We agree that a qualified First Amendment right of access extends to such documents. Access to written documents filed in connection with pretrial motions is particularly important... where no hearing is held and the court's ruling is based solely upon the motion papers."4 B. The Common Law Also Establishes A Presumption Of Openness. Second, a similar presumption of openness exists under the common law. Indeed, "the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." See Federal Trade Commission v. 4 Accord: In re The Charlotte Observer v. Bakker, 882 F.2d 850 (4th Cir. 1989) (Court granted newspaper's requested relief vacating a district court decision "closing to the press and public [due to Sixth Amendment concerns] a scheduled hearing on the motion by the defendants for a change of venue, and sealing certain documents filed in connection with that motion."); The Associated Press v. United States District Court For Central District of California, 705 F.2d 1143, 1145 (9' Cir. 1983) ("There is no reason to distinguish between pretrial proceedings and the documents filed in regard to them."); United States v. Antar, 38 F.3d 1348 (3rd Cir. 1994) (Court found First Amendment right to access required unsealing of transcript where the court had not made requisite findings of compelling reasons for sealing, which could not be retroactively done.) 22