Court of Appeals of Ohio, First District, Hamilton
STATE OF OHIO EX. REL. THE CINCINNATI ENQUIRER, STATE OF OHIO EX REL. THE ASSOCIATED PRESS, STATE OF OHIO EX REL. RAYCOM MEDIA, d.b.a. WXIX-TV, STATE OF OHIO EX REL. OHIO/OKLAHOMA HEARST TELEVISION INC., d.b.a. WLWT-TV, STATE OF OHIO EX REL. SINCLAIR MEDIA III, INC., d.b.a. WKRC-TV, STATE OF OHIO EX REL. CINCINNATI PUBLIC RADIO, d.b.a. WVXU, and STATE OF OHIO EX REL. SCRIPPS MEDIA INC., d.b.a. WCPO-TV, Relators,
HON. LESLIE E. GHIZ, JUDGE, HAMILTON COUNTY COURT OF COMMON PLEAS, Respondent.
Action in Prohibition and Mandamus
Graydon Head & Ritchey LLP, John C. Greiner and Darren W.
Ford, for Relators State of Ohio ex rel. The Cincinnati
Enquirer, State of Ohio ex rel. The Associated Press, State
of Ohio ex rel. Raycom Media, d.b.a. WXIX-TV, State of Ohio
ex rel. Ohio/Oklahoma Hearst Television Inc., d.b.a. WLWT-TV,
State of Ohio ex rel. Sinclair Media III Inc., d.b.a.
WKRC-TV, State of Ohio ex rel. Cincinnati Public Radio,
Brown Todd, LLC, Monica L. Dias and Susan Grogan Faller, for
Relator State of Ohio ex rel. Scripps Media Inc., d.b.a.
Wiles Burkholder & Teetor, LLC, Mark Landes, Mark R.
Weaver and Holly E. Oak, for Respondent.
On July 19, 2015, University of Cincinnati Police Officer
Raymond Tensing initiated a traffic stop of Samuel DuBose.
During the course of the encounter, Tensing discharged his
firearm, killing DuBose. Ten days later, a Hamilton County
grand jury issued a two-count indictment, charging Tensing
with murder and voluntary manslaughter. Amid significant
local, national, and global media coverage, the case
proceeded to trial beginning on October 31, 2016. The trial
proceeded to jury deliberation until, on November 12, the
jury announced it was hopelessly deadlocked and the trial
judge declared a mistrial.
On December 7, 2016, the case was transferred to Respondent
Leslie E. Ghiz ("Respondent"), Judge of the
Hamilton County Court of Common Pleas for a second trial.
Prior to the trial commencing, Respondent put on an entry
which limited media coverage of the proceedings. Respondent
also refused to release the questionnaires that had been
completed by prospective jurors in the case. As a result of
that entry, several media outlets filed complaints in this
court seeking a writ of prohibition to prevent Respondent
from enforcing the restrictions. This court granted an
alternate writ, preventing Respondent from enforcing the
order, holding that "[i]n the absence of an evidentiary
hearing and particularized findings, the restrictions imposed
by the Respondent are contrary to law." In light of this
court's ruling, Respondent vacated her original order.
This court then dismissed the petitions as moot.
Pursuant to the mandate from this court, Respondent conducted
a hearing on the matter on June 1, 2017. During the hearing,
Respondent heard testimony from three individuals. The first
individual had been the courtroom bailiff during the first
Tensing trial. He testified to the contents of an affidavit
he had prepared in which he averred that some of the jurors
during the first trial had expressed discomfort at being
publically identified as jurors. A deputy testified that she
had observed, on courthouse surveillance video, two
individuals who appeared to be photographing individuals
outside the main entrance of the courthouse on the first day
of jury selection. Another deputy testified about the
security measures taken during the first Tensing trial,
including the restrictions put in place for the use of
electronic devices in the area around the courtroom.
Respondent also reviewed the completed juror questionnaires.
Of the 180 completed forms, the court found that 38
individuals had said that they would not be willing to serve
if their identities became known publically, and 39
individuals said they would be "concerned about their
personal safety, reputation or standing in their community
among family, friends and associates" should they be
asked to serve on the jury.
Respondent also took judicial notice of other matters. For
example, she took judicial notice of the fact that she had
presided over another criminal trial in which an associate of
that defendant had used social media to try and locate
jurors. She also took judicial notice of two separate
instances involving cellular devices in pretrial hearings:
one in which a prospective juror's phone rang during a
proceeding because he or she had forgotten to silence it, and
another in which a spectator had dropped a phone during a
hearing while testimony was being taken, "causing a
distraction." She also took "judicial notice"
that "certain interactions between police officers and
African American citizens wherein deadly force was used or
death otherwise resulted have found their way into criminal
courtrooms and some judicial outcomes have led to massive
public outcry and even serious violence against persons,
" but she determined that she "need not list or
detail [the] incidents seen in America over the last few
As a result of the hearings, and the other information of
which she had taken judicial notice, Respondent issued two
separate decisions on court and information access. First,
she signed an entry in which she denied the request for
release of the questionnaires completed by the serving and
prospective jurors until after the trial had concluded. Upon
the conclusion of the trial, Respondent indicated that the
questionnaires would be released, with personally-identifying
Respondent later issued a separate decision in which she
severely restricted media access to the proceedings. The
restrictions included limiting access to the courtroom to
four randomly selected members of the media-regardless of the
amount of seating that would otherwise be available to the
general public; forbidding the use of electronic devices in
the courtroom by anyone other than attorneys or court
personnel; forbidding the use of electronic devices on the
fifth floor of the courthouse (the floor on which the trial
was proceeding) except by attorneys, court personnel, or
media representatives in a specifically-designated media
room; forbidding photographing or video recording of jurors
or prospective jurors; and limiting media to using a single,
shared camera with a video and audio feed that would be
available for the use of all, would be broadcast to the media
room and would be available for livestreaming on the internet
or recording for later use.
Relators filed complaints with this court, petitioning the
court for writs of prohibition and mandamus. Relators seek a
writ of mandamus to compel Respondent to release the
unredacted jury questionnaires. They seek a writ of
prohibition prohibiting her from enforcing the restrictions
put in place on the media's access to the trial
proceedings. After the initial pleadings were submitted,
Relators filed a motion for summary judgment, claiming they
are entitled to relief as a matter of law.
Writ of Mandamus
To be entitled to a writ of mandamus, a relator must
establish (1) a clear legal right to the relief sought, (2) a
clear legal duty on the part of the respondent to perform the
requested act, and (3) the lack of an adequate remedy in the
ordinary course of law. State ex rel. Scott v. Franklin
Cty. Bd. of Elections,139 Ohio St.3d 171,
2014-Ohio-1685, 10 N.E.3d 697, ¶ 14. These requirements
must be proved by clear and convincing evidence. Id.
"Mandamus is the appropriate vehicle to compel
disclosure of specific records requested under the Ohio
Public Records Act and the Ohio and United States
Constitutions." State ex rel. Beacon Journal
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