CINCINNATI – The hearing in Ray Tensing's murder retrial Monday morning opened with a testy squabble between the judge and an attorney for the Enquirer over the release of jurors' questionnaires.
After two hours of contentious arguments, Judge Megan Shanahan agreed to release the questionnaires with the jurors' names, addresses and other personal, identifying information redacted. Shanahan ordered them released by 4 p.m. Tuesday.
Shanahan said she found that jurors' fears of serious bodily harm, or even death, from perceived threats supersede the media's right to the complete questionnaires. The Enquirer's attorney, Jack Greiner, pressed for release of the complete questionnaires and challenged the credibility of Shanahan's bailiff, Timothy Noel, after Shanahan put Noel on the stand.
Shanahan fired back at the Enquirer, saying it falsely reported that it had withdrawn its request for the questionnaires. The Enquirer never withdrew its request in writing, the judge said.
Making their cases separately, Greiner and an attorney for WCPO, Monica Dias, insisted the law and the public's right to know required Shanahan to release the questionnaires. The judge had sealed the questionnaires on third day of testimony Nov. 4.
WATCH Dias explain WCPO's stance in the video player above.
The 25-page questionnaires caused a jury "revolt" during the trial, according to prosecutor Joe Deters. Jurors refused to return to the courtroom for two hours Nov. 4 in fear and protest after Shanahan announced that morning that her attorney advised her to release their questionnaires at the media's request, Deters said.
WATCH Monday's hearing on the questionnaires below:
WCPO had requested redacted questionnaires while WLWT and WXIX requested the names and addresses of the jurors, Shanahan said Monday.
Once the turmoil took over the courtroom, The Enquirer tweeted that it had withdrawn its request.
We have withdrawn our public record request for juror survey information in the #TensingTrial .
— Enquirer (@Enquirer) November 4, 2016
The Tensing trial ended in a hung jury and a mistrial on Nov. 12 after 25 hours of jury deliberations. The former University of Cincinnati police officer faced murder and voluntary manslaughter charges after shooting an unarmed black motorist, Sam DuBose, during a traffic stop on July 19, 2015.
The Ohio Supreme Court has endorsed the media's right to see unredacted jurors' questionnaires as part of its First Amendment duty as a government watchdog, Dias said in a courthouse interview after the hearing.
"This is not something that the media or WCPO has invented. This is something that courts across the country have recognized as an important foundation to our free democracy," Dias said.
It's necessary to ensure that the public understands how jury trials are administered and that they are conducted fairly, Dias said.
"Having open court, which includes information about the jury, allows the public to assess for themselves," Dias said.
Dias said she disagreed with Shanahan's ruling and suggested the media may appeal after they see what is redacted.
"I don't think the standard set forth under Ohio Supreme Court case law has been met here. There has been no particularized findings of any danger to any specific juror. There have just been generalized comments about concerns, and that's not enough," Dias said.
Requesting juror information is a normal process media outlets make in nearly every major trial. The goal in requesting this information is to best understand the backgrounds of the jury pool. The availability of this information during the trial provides further in-depth perspective into the backgrounds of the jury that deliberate the verdict.
In an affidavit during the trial, Noel had stated that jurors expressed fears to him about their privacy and safety. That affidavit was attached to Shanahan's file entry Nov. 4 sealing the questionnaires.
READ the entry below.
On the stand, Noel swore to the truthfulness of his affidavit, but that wasn't good enough for Greiner. The attorney asked Noel to name the jurors who expressed fears to him. When Noel said he didn't know the jurors by name, Greiner said, "So we have to take your word for it?"
In a particularly testy exchange. Greiner said Noel couldn't verify his truthfulness and asked Shanahan to strike his testimony from the record.
"His testimony is not being introduced for the truth of the matter," Shanahan responded.
Greiner disputed that and asked for a recess to give Noel time to get the jurors' names.
Greiner asked Noel if he had written the affidavit himself and Noel admitted he had help.
"I'm not a lawyer," Noel said.
Shanahan asked if "every statement" Noel had attributed to a juror "came out of a juror's mouth," and Noel said it had.
Greiner argued that there had to be "substantial probability" of danger to jurors - not just their fears - to allow Shanahan to withhold any part of their questionnaires.
Shanahan allowed one alternate juror to withdraw after the juror expressed fears over the questionnaires.
According to the Noel's affidavit, seven to eight jurors told Shanahan's bailiff that they "fear for their well-being" if their identities become known.
Later, the judge issued an order sealing the questionnaires. But that same afternoon, she said in the court entry that she would release the questionnaires after all, with jurors' names and personal information redacted.
She had withheld the questionnaires ever since.
Noel wrote that jurors had expressed concerns to him about their names being released. One even asked if jurors' paychecks were public records.
Noel also said they worried about the questionnaires becoming public and said they contained personal information they did not want released.
In addition, "several jurors raised concerns about the potential they might be photographed or recorded on video," Noel said. Specifically, he said that:
> At least seven to eight jurors said they were afraid the pool video camera may have filmed them in the courtroom.
> Some were concerned about being photographed on last Monday's visit to the street where Tensing, a former UC police officer, has admitted shooting DuBose during a traffic stop in 2015.
> A juror pointed out a media camera pointed at the sheriff's van that took them to the scene in Mount Auburn. Another juror pointed out a media representative on the front porch of a nearby home and worried that she was taking cell phone images of them.
> A juror asked Noel if he was monitoring the courtroom livestream to make sure no jurors were being.
Before jury selection, more than 230 prospective jurors filled out the questionnaire. It asked if they are Democrat or Republican and their opinions about the police and Black Lives Matter, among other things.
On the first day in court, Shanahan acknowledged that many of them wrote in the questionnaire that they were worried about their privacy and safety. Shanahan promised the jury pool to keep their identities secret and ordered the media not to photograph them, even though most news outlets refrain on their own in any trial. She threatened to kick out media outlets if they took any photos or video that even accidentally showed prospective jurors.
When the jurors went to Mount Auburn to survey the shooting scene, Shanahan made sure they stayed in the sheriff's vans and that the vans' windows were tinted enough to hide the jurors' faces from any cameras.