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State ex rel. Cincinnati Enquirer v. Ghiz

Court of Appeals of Ohio, First District, Hamilton

December 13, 2017

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,
v.
HON. LESLIE E. GHIZ, JUDGE, HAMILTON COUNTY COURT OF COMMON PLEAS, Respondent.

         Original 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, d.b.a. WVXU,

          Frost Brown Todd, LLC, Monica L. Dias and Susan Grogan Faller, for Relator State of Ohio ex rel. Scripps Media Inc., d.b.a. WCPO-TV,

          Isaac Wiles Burkholder & Teetor, LLC, Mark Landes, Mark R. Weaver and Holly E. Oak, for Respondent.

          OPINION

          MOCK, PRESIDING JUDGE.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶4} 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 years."

         {¶5} 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 information redacted.

         {¶6} 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.

         {¶7} 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.

         The Writ of Mandamus

         {¶8} 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 Publishing Co. v. Bond,98 ...


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