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State ex rel. The Cincinnati Enquirer v. Oda

Court of Appeals of Ohio, Twelfth District, Warren

February 26, 2018

STATE OF OHIO EX REL. THE CINCINNATI ENQUIRER, A DIVISION OF GANNETT GP MEDIA, INC., Petitioner,
v.
HONORABLE DONALD E. ODA II, Respondent.

         ORIGINAL ACTION IN PROHIBITION

          John C. Greiner and Darren W. Ford, for petitioner

          D. Vincent Faris, Clermont County Prosecuting Attorney, and G. Ernie Ramos, Jr., Assistant Prosecuting Attorney, for respondent

          OPINION

          S. POWELL, P.J.

         {¶ 1} This case involves a review of a petition for a writ of prohibition submitted to this court on December 13, 2017. Petitioner, The Cincinnati Enquirer, a division of Gannett, GP Media, Inc. ("Enquirer"), filed its petition with this court on August 28, 2017. Respondent, the Honorable Donald E. Oda II ("Judge Oda"), filed his answer to the Enquirer's petition on September 21, 2017. The Enquirer then filed its brief in support of its petition on October 10, 2017. On November 1, 2017, Judge Oda filed his response brief in opposition to the Enquirer's petition. The Enquirer subsequently filed its reply brief in support of its petition on November 13, 2017. Oral arguments were then held before this court on December 13, 2017.

         {¶ 2} The matter now properly before this court, the Enquirer seeks a writ of prohibition to prevent Judge Oda from enforcing the order on courtroom decorum and pretrial publicity he issued on August 18, 2017 in the case of State v. Richardson, Warren C.P. Case No. 17CR33292. For the reasons outlined below, the Enquirer's petition for a writ of prohibition is hereby granted.

         The Parties

         {¶ 3} The Enquirer is a newspaper of general circulation in Cincinnati, Ohio. Judge Oda is a judge for the Warren County Court of Common Pleas who is presiding over the Richardson case. In that case, the 18-year-old female defendant is charged with aggravated murder, involuntary manslaughter, endangering children, tampering with evidence, and abuse of a corpse after it was alleged she killed her baby and buried the corpse in the backyard of her Warren County home.

         Facts and Procedural History

         {¶ 4} On August 9, 2017, Judge Oda issued an interim order on courtroom decorum and pretrial publicity restricting the parties in the Richardson case from making or participating in any extrajudicial statement that they would expect to be disseminated by means of public communication, whether written, broadcast, and/or electronic media, as well as social media. In issuing this interim order, Judge Oda sua sponte determined that there was a "substantial probability" that a fair trial would be compromised and potential jurors would be prejudiced if the parties involved in the case were not prohibited from further commenting on the case. Continuing, Judge Oda then stated as part of the interim order:

The Court notes that the coverage of this case by the press has been remarkably fair. Both sides have expressed their positions, and neither side appears to have 'the upper hand' when it comes to news coverage. The public commentary and the right that every American now seems to have to weigh in on social media regardless of their knowledge of the facts are largely irrelevant. People can think what they want, say what they want, tweet or post what they want - the Court is confident a Warren County jury has the discernment to disregard this information and focus on the facts. However, witnesses talking about the facts of the case in advance of trial, press releases, attorneys talking about evidence, lack of evidence or trial strategy substantially impairs the Court's ability to conduct a fair and impartial trial.

         {¶ 5} On August 14, 2017, the Enquirer filed objections to Judge Oda's interim order alleging there was no evidence in the record to indicate such an order was necessary so as to ensure the defendant received a fair trial. Three days later, on August 17, 2017, Judge Oda presided over a hearing on the Enquirer's objections. During this hearing, Judge Oda - without prompting from any of the parties present at the hearing - admitted a single exhibit, Exhibit A, a list of links to online news articles reporting on the charges against the defendant, as well as copies of the corresponding news articles. These news articles were printed from websites belonging to both local and national media outlets including, but not limited to, WLWT, WCPO, and Fox 19 from Cincinnati, WDTN and WHIO from Dayton, Fox 8 from Cleveland, and CBS News. Aside from Exhibit A, no other evidence was presented at this hearing from the state, from the defendant, or from the Enquirer.

         {¶ 6} On August 18, 2017, Judge Oda issued a decision upholding the prohibitions laid out in his previous interim order, which, as noted above, restricted the parties from making or participating in any extrajudicial statement that they would expect to be disseminated by means of public communication, whether written, broadcast, and/or electronic media, as well as social media. Judge Oda also restricted the parties from (1) publicly discussing or disseminating evidence gathered in the case, (2) making public statements about the case, and/or (3) posting or commenting upon any aspect of the case on social media.

         {¶ 7} In issuing this decision, Judge Oda found there had been substantial news coverage of the case and a significant amount of pretrial publicity. This media coverage included, among other things: (1) statements of the attorneys concerning their opinions and/or observations concerning the allegations, as well as facts that may or may not be presented at trial, evidence, possible motives, and trial strategy; (2) statements of investigators and prospective witnesses regarding facts in connection with the case that may or may not be true and/or admissible; and, (3) statements from the parties concerning the case. In so holding, Judge Oda determined ...


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