CINCINNATI -- Judge Leslie Ghiz relaxed restrictions on electronic devices for media covering the Ray Tensing retrial but hasn't announced whether she will release juror questionnaires.
Ghiz dropped her ban on electronic devices on the fifth floor of the courthouse and said she would allow authorized media outlets to use smartphones, tablets and such in the media room. However, she's still banning electronic devices in the courtroom.
The attorney for the Enquirer, Jack Greiner, explicitly warned Ghiz of the possibility of a return to appeal's court after she said she might takes a few days to make a ruling on the questionnaires.
"There is no way for the press and public to meaningfully participate in the (voir dire) process without, at a minimum, the redacted questionnaires," Greiner said. "There is simply no way for the press and public to understand who is sitting in that box. So we need, Your Honor, some decision so that hopefully the questionnaires will be released or we can go back to the First District Court of Appeals and ask them to intervene once again."
Examine Ghiz's ruling at the bottom of this article.
Ghiz's ruling said only this about the questionnaires: "A further order will be issued in the near term concerning the request for juror questionnaires."
Ghiz is designating five seats in the courtroom for authorized media outlets (four during voir dire). A pool video camera operator will shoot for livestreaming and news video and a pool still photographer will also get a seat. Both are barred from shooting jurors or prospective jurors. A daily lottery will be conducted to fill the other seats.
Media will not be allowed to use electronic devices in the hallways on the fifth floor.
Ghiz's decisions, announced Thursday evening, followed a contentious hearing with media attorneys in the morning.
There were several squabbles with the judge rebuffing another attorney’s suggestion that trading courtrooms with Judge Megan Shanahan might be one way to resolve issues with Ghiz's restrictions.
Monica Dias, attorney for WCPO, suggested that holding the retrial in the same courtroom where the first trial was held last November might be a solution.
But Ghiz squashed that idea.
“I can’t go to the judge and say, ‘Oh, by the way, get out of your room for three weeks so I can handle a trial in here.’ It doesn’t work like that,” Ghiz said. “This is my courtroom and this is where it will be conducted.”
Dan Blanton, assignment commissioner for Common Pleas Court, told WCPO that it is Ghiz’s call where to hold the trial, but that the presiding judge, Melba Marsh, “has the power" to intervene. But Blanton said he hasn’t seen that happen in his 30 years at the county, and a court staffer said Marsh is on vacation.
Ghiz said her first priority was to determine media restrictions.
"No decision has been made on jury questionnaires and you won't see a decision on that for a few days," Ghiz said in the morning hearing. "The No. 1 issue we have right now is media coverage – electronic devices and filming of the proceedings by the media. That will be addressed immediately and forthcoming will be the issue with regard to the jury questionnaires."
A testy exchange with Greiner followed.
Greiner: “So I think what I’m hearing from you, you do not intend to rule on the request for the questionnaire before voir dire begins, is that correct?
Ghiz: “I am not certain what I will be doing, but I know the first issue at hand will be media coverage.”
Greiner: “The questions (about the jury) are essentially answered in documents the press and the public can not see. In the last proceeding, in my recollection, voir dire took about a hour. People were astounded by that. The reason it did was all the information was in the questionnaire.
“With voir dire beginning tomorrow, and if those questionnaires at least in redacted form are not produced, the press and the public will have no way to know much if anything about the jury."
He said starting voir dire without the questionnaires “will not engender trust in the fairness and integrity of the proceeding and will do quite honestly the opposite.”
Ghiz doesn't want the filled-out juror questionnaires released in any form - redacted or not. And neither do prospective jurors, she said. Ghiz said the 180 people who filled out the questionnaire expressed concern for protecting their private information and safety. She pointed to responses on two questions about juror feelings on the chance their names are made public.
"Out of those 180 there were 77 responses who either don't want to serve if their identities are revealed or information is released to the media or have a safety concern," the judge said.
But Greiner countered by pointing out that 103 people answered just the opposite.
"What that demonstrates conclusively is the majority of the the pool is not concerned," he said.
The hearing got off to a contentious start with Greiner and Dias grilling two deputies and a bailiff who the prosecutor's office called to testify to the need for Ghiz's stricter-than-usual restrictions on media access and coverage.
The restrictions originated from a "waiver" Ghiz told media members they had to sign before the start of jury selection. The waiver said media members agreed not to show jurors, witnesses or victims who did not want to be recorded; any news outlet that didn't agree would have been banned from airing and recording what happens in Ghiz's courtroom.
The judge also barred electronic devices such as smartphones, laptops and tablets from the courtroom and entire fifth floor of the Hamilton County Courthouse during the trial.
WCPO and other local media outlets, including the Enquirer, Associated Press, WXIX-TV, WLWT-TV and WKRC-TV, filed complaints.
Last Friday, the First District Court of Appeals' ruled Ghiz's restrictions "are contrary to law" because she made them without a hearing or considering evidence. So Ghiz vacated the appeals court's order and scheduled Thursday's hearing.
Throughout the hearing, the media attorneys objected to all witnesses' testimony and Ghiz overruled all of those objections. Greiner said all testimony was "textbook hearsay."
Tim Noel, Shanahan's bailiff, described multiple instances in the first trial when jurors expressed concern about laptops, cameras and media members. When asked if he knew the names, any identifying factors or gender of the mentioned jurors, Noel said he couldn't remember.
— Ally Kraemer (@AllyKraemer) June 1, 2017
"It's been seven months," Noel said. "I don't remember. I've had other juries since then."
Deputy Emily Rose testified that she saw someone filming the line of people outside the courthouse during jury selection for the first trial. Rose said she couldn't provide the footage.
Dias asked Rose to confirm that it's legal for someone to film or photograph the outside of the courthouse; Rose responded "yes."
In the initial complaint, the media outlets argued that Ghiz "abused her judicial power" and violated the First Amendment by limiting access to juror information.
In a response to the complaint, Ghiz cited a "juror revolt" during the first Tensing trial, when they reportedly said that they were in "fear for their well-being." The media outlets argued that "revolt" was caused by "the court's failure to provide adequate notice to jurors of their right to request" a private hearing.
The "revolt" -- which resulted in the replacement of one juror -- took place after Shanahan made a statement in open court regarding the release of juror questionnaires.
Note: WCPO does not publish juror names or images that show jurors' identities without the permission of those jurors. However, WCPO believes it is important for journalists to be able to contact jurors and talk to them about what happened during the trial and deliberations -- if jurors are willing to talk.
Sheriff's Sgt. Michael Dreyer, who was on special assignment granting security for the original Tensing trial, said banning all electronic devices from the fifth floor of the courthouse, a condition challenged by media members, would include everyone on the fifth floor except attorneys.
Dreyer said a blanket ban of electronics would streamline the daily operations in the courthouse. Greinier asked if media members could show badges in the same way to attorneys; Dreyer responded by asking if media passes are provided by Hamilton County or by their media companies.
Dreyer said electronics weren't banned during the last trial because the placement of Shanahan's courtroom made security measures "easier" to enforce.
Ghiz previously told media her restrictions were part of her efforts to keep the trial in Hamilton County. That's the wrong choice, WCPO's complaint said. The Ohio Supreme Court has previously found a trial should be moved before restricting media access.
“The First Amendment, Ohio Supreme Court case law and the United States Supreme Court case law protect the right of the media as the eyes and ears of the public to enter the courtroom, watch the proceedings and make sure the proceedings are handled in a just manner,” Dias said.
Tensing, a former University of Cincinnati police officer, is charged with murder and voluntary manslaughter for fatally shooting black motorist Samuel DuBose during a traffic stop July 19, 2015. Tensing has claimed his use of force was justified, saying DuBose’s car dragged him as DuBose tried to drive off from a traffic stop and left Tensing in fear for his life.
For complete trial coverage, visit wcpo.com/TensingTrial.