CINCINNATI – A moment of laughter broke the tension in the courtroom Friday afternoon before the prospective jurors in the Ray Tensing murder retrial went home for the weekend.
One prospective juror raised his hand and asked what they should do if a member of the media approached them.
"Run,” Judge Leslie Ghiz answered. “Run.”
Jury voir dire picked up where it left off Monday, but it’s uncertain whether tension between Ghiz and the media will cause any interruptions.
Voir dire -- or the selection process to whittle down potential jurors -- could be interrupted by another ruling from the Ohio First District Court of Appeals after Scripps/WCPO and several other media outlets in town sued the judge again Friday. That will depend on whether the appeals court accepts or rejects Ghiz’s arguments for withholding the prospective jurors’ questionnaires and imposing stricter-than-usual limitations on media access to her courtroom.
Motions from the defense and the prosecution to move the trial out of town – both sides blamed the media for turning the proceedings into a "circus" – will also cast a shadow over the goings-on this week.
Ghiz has argued her rulings are necessary to protect jurors’ identity and safety and to ensure a fair trial. She had suggested that prospective jurors would decline to serve if they know their names would be released, or if they could be photographed as members of the jury.
But 111 prospective jurors had mixed responses when questioned in two groups by attorneys in court Friday afternoon. Here’s how they answered four questions in a show of hands:
Would you object to your name and address being made public if the unredacted questionnaires are released?
73 percent (a total of 81) indicated yes.
Would you object to being photographed as a member of the jury?
39 percent (a total of 43) indicated yes.
Would you object to the answers you gave on their questionnaire being released?
35 percent (a total of 39) indicated yes.
If one or more of these things were to happen, would you not want to serve on the jury?
41 percent (a total of 46) indicated yes.
So, it appears that 59 percent (a total of 65) of those 111 perspective jurors were OK with serving on the jury despite the risk of having their names, addresses and answers released and their pictures taken.
A total of 107 are still left in the jury pool after 73 were excused Friday.
In a 14-page judicial entry Friday evening, Ghiz announced she would release redacted questionnaires, but only after the trial. Ghiz emphasized that she believes the jurors – as well as a fair trial – would be in danger if their names are released.
READ Ghiz's entry below.
“A release of these records to news media outlets would trigger parallel releases to anyone in the general public, including violent groups with malevolent intent,” Ghiz wrote.
“Only the most ideologically blinded person would deny that the case at bar contains risks to jurors that are substantially greater than those found in every criminal prosecution.
“The jurors could be approached or even harassed or offered money."
Furthermore, Ghiz wrote:
“Some judicial outcomes have led to massive public outcry and even serious violence against persons. In a legal system where bailiffs and judges are given some protection from public scrutiny in the work they do in courtrooms, only the most unreasonable among us would embrace a viewpoint that offers no concomitant protection to jurors, a group of citizens tasked with making a difficult decision under the harshest of spotlights.”
Ghiz also raised objection to comments by attorney Jack Greiner, who is representing the Enquirer and other TV stations in town. Ghiz cited some things Greiner said in a WLW Radio interview with Bill Cunningham last Thursday.
According to Ghiz, Greiner said the media outlets he represents want the jurors’ identities “in order to ‘fact-check’ the answers of jurors and determine whether they lied.”
"Jurors would be unable or unwilling to perform their sworn duties if their personal lives become public news and their responses to their questionnaires were subject to strict scrutiny by the press.”
SEE Ghiz’s entry below.
In its suit, Scripps/WCPO is seeking the release of juror questionnaires and emergency relief from Ghiz’s restrictions on media coverage. The media had already sued Ghiz the previous week, and the appeals court forced her to hold a Thursday hearing to show cause for her restrictions.
Scripps/WCPO’s suit specifically seeks:
• Release of questionnaires filled out by 180 prospective jurors;
• The same access to the courtroom as members of the public if WCPO is not one of the media outlets to win the lottery for media seats established by Ghiz. Ghiz has reserved seats for the public on a first-come, first-served basis.
• Free use of electronic devices in the courtroom and the fifth-floor hallway, banned by Ghiz.
• Freedom to photograph and record prospective jurors, jurors, witnesses and victims, banned by Ghiz.
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.
The Ohio Supreme Court has ruled that juror questionnaires are public record. “WCPO has clear legal right to the completed questionnaires with Social Security numbers, driver's license numbers and phone numbers redacted," the suit says.
“If the retrial proceeds under the current order (and with no completed juror questionnaires available for public inspection) the public and the press will not be able to meaningfully observe the proceedings and their First Amendment rights will be eviscerated.”
Before jury selection began Friday morning, Ghiz castigated the media from the bench, saying they threatened a fair trial in the interest of getting viewers and selling newspapers. By then, Ghiz hadn’t ruled on whether she would release the questionnaires, and the media sued again.
Counsel for both sides, defense attorney Stew Mathews and new prosecutor Seth Tieger, asked for a change of venue. Ghiz, who has made it clear she wants to hold the trial here if an impartial jury can be seated, said she would take it under advisement.
Mathews first asked Ghiz to drop the indictment because of the circus atmosphere.
“There has been a resurrection of the shuttered Ringling Bros. [and] Barnum & Bailey Circus and because of the effect that's had on these proceedings there's no way my client can get a fair trial as is his right under the Constitution of the State of Ohio and the United States Constitution,” Mathews said.
After Ghiz denied that motion, Mathews asked for a new jury pool, saying the media had “poisoned” the first one with its objections and interruptions.
“My concept, Judge, is we dismiss this prospective voir dire, hold the trial in abeyance until the media finishes telling you how to conduct the trial, and then we start over again, Mathews said.
Ghiz rejected that motion, too.
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.