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Appeals court tells Judge Leslie Ghiz: Release redacted juror questionnaires in Ray Tensing retrial

Tensing juror questionnaires ordered released
Posted at 4:28 PM, Dec 13, 2017
and last updated 2017-12-13 20:20:35-05

CINCINNATI – An appeals court Wednesday ordered Judge Leslie Ghiz to release redacted juror questionnaires from the Ray Tensing retrial last June.

The Ohio First District Court of Appeals ruled partly in favor of WCPO and other local media outlets that sued Ghiz to release questionnaires before the highly enflamed murder trial of the former University of Cincinnati police officer.

The three judges ruled unanimously that Ghiz erred by not conducting a proper inquiry into jurors’ stated concerns about the release of the questionnaires. They said Ghiz should have released the redacted questionnaires immediately after conducting a hearing on the issue and before the trial began.

At the time, Ghiz cited several reasons for not releasing them – including racial tension and fears for personal safety expressed by some prospective jurors on the questionnaires.

The judges - Russell Mock, Dennis Deters and Marilyn Zayas-Davis – ruled that Ghiz made “insufficient finding to support her decision” because she did not question those prospective jurors individually.

The media outlets had argued that full and unredacted questionnaires should be released to ensure openness in the trial. But the Court of Appeals, calling it "close case," ruled against releasing names and other identifying information.

“We conclude that [media] demonstrated they had a qualified right to access the information that created a presumption of openness, but [Ghiz’s] findings were sufficient to overcome that presumption,” the ruling stated.

“The trial court made findings that support the conclusion that there may be risk to the jurors in the case that exceeds the risk borne generally by jurors who serve in criminal trials.

"Concededly this is a close case. It was perhaps made needlessly close by the fact that [Ghiz] failed to conduct a proper and complete Bond hearing in accordance with our prior order. But we conclude that the findings made by the trial court were sufficient, if only barely."

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.

Ghiz had said she would release redacted questionnaires after the trial but has never done so.

WCPO reached out to Hamilton County Court Administrator Pat Dressing to ask when the court would release the questionnaires.

Dressing said he first needed to review the appeals court decision and contact Ghiz.

"We've waited a long, long time," said attorney Monica Dias, who represented WCPO,

Dias called the ruling "a victory" nevertheless because it recognized that the public has a right to access juror questionnaires and it put all Hamilton County judges on notice that if a trial judge wants to close that access, the judge has to follow a certain procedure.

“The Court of Appeals indicated in their ruling that that procedure was not followed as thoroughly as it should have been and the Court of Appeals expressed some frustration with that," Dias said.

The court Wednesday ordered Ghiz to release the 180 questionnaires of potential jurors after redacting names, addresses, Social Security numbers, telephone numbers, driver’s license numbers and places of employment where that could identify them.

Dias said the public has a right to know about the people who are deciding cases, which is especially important in a high-profile murder trial like Tensing's.

“It helps the public, who’s not in the courtroom, evaluate whether justice is being administered fairly,” Dias said. 

The questionnaires, prepared by the attorneys for both sides, asked prospective jurors about their feelings about police and Black Lives Matter, whether they think police enforce laws fairly, among other things. They also asked about prospective jurors' backgrounds, where they live and work. 

The idea, Dias said, was to determine whether the jurors "were qualified and competent to hear this or not, whether the jurors all seemed to be of the same background – that’s problematic," she said.

“That questionnaire was over 100 questions, so even if you don’t know names and addresses, you can glean a lot of information about that particular juror, so it’s very important that now the public is at least going to see the information on the questionnaires and decide whether it looks like the trial was fair or not.”

Tensing, who is white, was on trial for shooting a unarmed black motorist, Sam DuBose, at a traffic stop in Mount Auburn in 2015. A grand jury indicted him on changes of murder and voluntary manslaughter.

Ghiz eventually declared a mistrial due to a hung jury. That was the same result of the first Tensing trial in November 2016, heard by Judge Megan Shanahan.

After the second mistrial, Hamilton County Prosecutor Joe Deters announced he would not retry the case and dropped the charges.

In a separate ruling, the appeals court determined that the media’s demand to lift Ghiz’s limitations on media access to the trial was moot because the trial is over and “we do not have a reasonable expectation that the same complaining party will be subjected to the same action again."

Zayas-Davis dissented on that ruling, citing WCPO’s objection to Ghiz’s order forbidding WCPO from "broadcasting, televising, photographing, or recording jurors or prospective jurors.” Zayas-Davis said the judges should have ruled on the merits of the petition. 

Mock, the presiding judge, wrote the ruling.