ELEPHANT ATTACK TAPE DUE OUT TODAY AFTER RESTRAINING ORDER ENDS
Elephant attack tape due out today after restraining order ends
FROM THE TOLEDO BLADE
BLADE STAFF WRITER
The Toledo Zoo is expected to release a video Wednesay morning depicting a young elephant attacking and critically injuring his trainer.
Louie, the zoo’s prize “baby” elephant, knocked elephant manager Don RedFox to the ground on July 1, leaving the keeper with two punctured lungs and multiple rib fractures. Zoo officials said Mr. RedFox entered 7-year-old Louie’s enclosure with some carrots while the elephant’s back was turned and it appears to have been startled. Mr. RedFox is undergoing treatment at the University of Toledo Medical Center, the former Medical College of Ohio. A review of the incident by zoo staff and animal experts is pending.
The video of the July 1 incident had been previously withheld from the media after a Lucas County Common Pleas Court judge granted a temporary restraining order on behalf of Mr. RedFox and his wife, Wanda.
The order was a result of the couple’s claims that the animal keeper’s privacy would be “irreparably harmed” if the video was released.
That changed yesterday when attorneys for the couple and the zoo approached Judge Linda Jennings with a proposed agreement that dissolved the restraining order.
The proposal meant that the temporary restraining order was no longer in effect after midnight when it expired.
According to attorney Timothy McCarthy, who represents the zoo, the proposal was submitted by the RedFoxes. He said that while privacy continues to be a concern for the couple, allegations that the elephant had been mistreated led them to rescind their prior opposition to the release of the video.
“The family was aware that there were rumors about the mistreatment of the elephant and they wanted to release the video,” Mr. McCarthy said. “…[The zoo] simply took the position with the court that if the family is prepared to forgo the temporary restraining order, then that was fine by the zoo, and we would make the necessary arrangements to release the video.”
According to zoo officials, Mr. RedFox violated zoo protocol when he entered Louie’s enclosure alone. Zoo rules stipulate that two staff members must be present during any direct contact with the elephants. The zoo has three elephants altogether.
Attorney Christopher Parker, who represents the couple, could not be reached for comment.
According to the motion filed on behalf of the couple this month requesting the temporary restraining order, the surveillance video “graphically” depicts the injuries sustained by the employee. The motion further stated that the RedFoxes have “an uncompromising right and interest in the protection of Mr. RedFox’s privacy with regard to his injuries and medical condition.”
The zoo did not oppose the motion.
Attorney Scott Ciolek filed a notice of appearance on behalf of The Blade July 6 to inform the court that the newspaper hoped to intervene in the case. On Monday, attorneys filed a motion requesting that the court allow the newspaper to appear in the case in opposition to the restraining order.
Citing Ohio public records law, the newspaper claimed that the recording is a public record in the possession of a public office.
“The Blade is pleased it will finally have access to the video, which is clearly a public record,” said Kurt Franck, executive editor of The Blade. “Unfortunately, the public was ill-served by the zoo in this case. Not only did the zoo fail to promptly share the video, it also failed to honor its public-records obligation in court. Zoo officials have been trying to control the message rather than trying to be transparent with the public. We expect better.”
The restraining order was in effect until yesterday, when a hearing for a permanent injunction was scheduled. Mr. McCarthy said the hearing was vacated after the parties reached their decision.
The zoo will unveil the video at a news conference scheduled for 10 a.m. on zoo grounds. At that time, Executive Director Anne Baker is expected to provide commentary while the video is played.
Staff writer Erica Blake contributed to this report.
Contact Claudia Boyd-Barrett at:
cbarrett@theblade.com
or 419-724-6272.
In: Uncategorized · Tagged with: Elephant Attack, Ohio Sunshine Law, Open Open Records Law, Toledo Blade, Toledo Zoo, Zookeeper
Toledo Zoo Enjoined from Releasing Video
Zookeeper on ventilator after elephant attack, officials at hospital say
Louie, a 7-year-old African elephant at the Toledo Zoo, became startled and injured a zookeeper last week.
As legal debate continued Tuesday over the release of a video showing an elephant knocking down a Toledo Zoo keeper, hospital officials said for the first time that the animal keeper suffered life-threatening injuries and is on a ventilator.
Donald RedFox, 53, of Swanton Township was injured Thursday by 7-year-old African elephant Louie in the animal’s enclosure at the zoo and remained in critical condition Tuesday at the University of Toledo Medical Center, the former Medical College of Ohio.
Dr. Kris Brickman, medical director of the hospital’s emergency department, said Mr. RedFox suffered multiple rib fractures in the attack and punctures to both his lungs. He is now attached to a ventilator and is under sedation. Dr. Brickman said Mr. RedFox is unconscious but emphasized that he is not in a coma.
Dr. Brinkman said Mr. RedFox’s condition is improving slowly, but predicted Mr. RedFox could be in the hospital for many weeks. He said complications are possible.
“His injuries are substantial. It’s going to be a long road,” Dr. Brickman said. “He is clearly not out of the woods.”
The incident was recorded on video, which the zoo had planned to release until receiving a letter on Saturday from Mr. RedFox’s attorney claiming the animal keeper’s privacy would be “irreparably harmed” if the video were released.
Lucas County Common Pleas Court Judge Linda Jennings Tuesday granted the attorney’s request for a temporary restraining order and set a July 20 date for a hearing on a permanent injunction.
Attorney Scott Ciolek filed a notice of appearance on behalf of The Blade Tuesday to inform the court that the newspaper hopes to intervene in the case. Mr. Ciolek said he will file such a motion Wednesday as well as one asking the judge to reconsider her decision.
“In this case, we’re talking about an audio/video recording of zoo employees acting within the scope of their employment,” Mr. Ciolek said. “What we have to do is lay out the law and demonstrate to the judge that facts that would make it a privacy issue are not present here.”
According to the motion filed on behalf of the elephant manager and his wife, Wanda, the surveillance video “graphically” depicts the injuries sustained by the employee.
The motion further stated that because the zoo relies on private and public donations, the organization may be “persuaded to release the security tape and related documents as a public record.”
“The specifics of Mr. RedFox’s injuries and his current medical condition have not been made public,” the motion said. “Plaintiffs have an uncompromising right and interest in the protection of Mr. RedFox’s privacy with regard to his injuries and medical condition.”
Zoo officials said late last week that Mr. RedFox violated zoo protocol when he entered the animal’s enclosure alone. He was knocked to the ground by the elephant after he approached the animal with carrots while its back was turned.
Zoo protocol specifies that keepers should always enter an animal’s enclosure with another staff member. Officials said the video footage shows that Louie appeared to have been startled, but it’s not clear why he knocked down Mr. RedFox, who has worked with the animal since its birth.
Mr. RedFox’s attorney, Christopher Parker, could not be reached for comment Tuesday.
Judge Jennings reviewed the video before issuing her order. Zoo attorneys did not oppose the imposition of the temporary restraining order.
Although Judge Jennings’ order prevents the zoo from acting on any public information requests regarding the video, zoo attorneys in a letter dated July 5 had already denied a request by The Blade, citing specific case law regarding personnel records.
Zoo attorney Timothy McCarthy could not be reached.
Mr. Ciolek said both parties will be able to weigh in on whether The Blade is able to join the case. He added that Judge Jennings would ultimately decide whether the newspaper is an appropriate party in the case.
Anne Baker, the zoo’s executive director, said Tuesday that RedFox family members have not wanted to see the video themselves. She said zoo officials have described the video to them.
The 4,000-pound elephant apparently struck Mr. RedFox with its tusk when he entered the animal’s quarters around 3:45 p.m. Thursday, officials said.
Mr. RedFox was taken to the hospital by ambulance, where he was deemed to need priority emergency attention, Dr. Brickman said.
Mr. RedFox’s family remains worried but optimistic, Dr. Brickman said Tuesday. “They’re managing things as well as can be expected.”
Contact Erica Blake at:
eblake@theblade.com
or 419-213-2134.
In: Uncategorized · Tagged with: Elephant, Toledo Blade, Toledo Zoo
Property owners’ questions about city of Toledo’s policy multiply
Below is a recent Blade Article about the people that are being affected by the Water Policy.
By IGNAZIO MESSINA
BLADE STAFF WRITER
Three years ago, Rod Stanton was meticulous about checking the history of a potential new investment rental property in West Toledo.
The modest home on Brame Place, a small dead-end street, all checked out. That is, until just two months ago when a mysterious $250 was subtracted from his mortgage escrow account to cover a lien from an unpaid water bill racked up by the house’s previous owner.
“The whole thing stinks because it was such a long time period,” Mr. Stanton said of the bill.
“The city could have filed a lien against [the previous owner] but never did. It never got filed until this March,” he said. “The city knew they didn’t have a case so they agreed to credit the money back, but before that, they said, ‘We know it doesn’t sound fair but it is legal.’•”
James T. Easter, Sr., who bought a house at 1810 North Detroit Ave., said the city wants more than $1,000 owed by a previous owner and he hasn’t decided if he’ll fight city hall and the water department or just pay.
“I talked to a man at the water department and they put me on a payment plan, but I am not going to make payments until I find out what’s going on,” Mr. Easter said. “I think [the lien] is a scare tactic because they didn’t turn the water off, the water is still on, but they are saying I have to make payments.”
Toledo property owners – some still with outstanding bills from former owners and others who have paid those kinds of bills – have questioned the city’s policy with more frequency this year. The Bell administration has stepped up collections of the $13.3 million in delinquent water, sewer, storm water, and garbage bills it is owed.
Additionally, after an influx of telephone calls complaining about such liens, Lucas County Auditor Anita Lopez recently stopped processing property water liens from the city of Toledo until the Bell administration addresses the issue.
After Mr. Bell said the practice had been ongoing since 1986, the administration’s official response to the auditor came from Tom Crothers, director of the Department of Public Utilities for the city.
“We have a duty to collect these,” Mr. Crothers said. “We have no choice.”
Toledo City Councilman D. Michael Collins, who is an independent, plans to change that if Mr. Bell doesn’t.
“One administration is blaming another administration but the curious thing is it’s the same people working in the city and it’s just another leader,” Mr. Collins said. “I think it’s a cavalier approach, and I think it’s wrong when they go to closing and they are told there are no outstanding costs for utilities and then for the buyer to find out two years later there is [an] outstanding obligation.”
Mr. Collins plans to submit legislation for council to change the city law that the Bell administration said requires it to charge the current property owner for any outstanding utility bills.
Collecting money the city is owed is a modest component of the plan that Mr. Bell enacted to address a $48 million general fund deficit – although water bills are funneled into a separate fund.
Jen Sorgenfrei, Mr. Bell’s spokesman, acknowledged a huge backlog of uncollected bills.
“Clearly in the past, they have done a poor job of collections which has snowballed into a greater outstanding debt for the utilities department,” Ms. Sorgenfrei said. “That does affect the bottom line of what other ratepayers are charged going forward and we are working on finding practical solutions to collecting those debts.”
Sometimes the city has “forgiven” homeowners for the debt incurred by a former owner.
That was the case for a Toledoan who declined to be identified. He was slapped with a lien on his home for delinquent water bill of $7,149 from the former owner.
Mr. Crothers admitted that kind of bill is “patently ridiculous,” and promised the city soon would have a new policy.
But he said that doesn’t mean all residents hit with these bills from the former owners of their properties will be off the hook.
Valerie Denney, who bought a foreclosed home on North McCord Road in 2003, lived there for seven years without a problem.
“I just sold it in March and there was a $78 water bill from the previous owner and that would have put a lien on the house,” Ms. Denney said. “They ended up taking the money out of my part of the sale.”
Like others, Ms. Denney said the city should have pursued the former home-
owner – the true scofflaw in her case – to get its money, not her.
Guy Cameron of Maumee, who owns a rental property at Walbridge Avenue, said the city tried to get about $600 that was unpaid by the property’s former owner.
“I fought it and got it reversed,” Mr. Cameron said after hearing that other people were facing similar bills. “Most of the time they just feed you a bunch of lines and want you to pay the bill.”
Ms. Lopez said she has ordered her staff to investigate all the liens the city filed in 2009, totaling about 1,500.
Although the city said it must file for liens in these cases, Ms. Lopez said her office’s attorneys have interpreted the city’s law to say the administration cannot place a lien on a property if the delinquent bills are from a former owner.
The issue is not unique to Toledo.
Annette Carulli of Perrysburg Township said the same thing happened to her in Wood County.
“I too bought a foreclosed house and I have a $189 water bill that took two years to show up,” Ms. Carulli said. “I had to pay the bill because it was on my taxes and if I had not, I would have had to pay late fees and fines.”
Contact Ignazio Messina at:
imessina@theblade.com
or 419-724-6171.
In: Uncategorized · Tagged with: Scoot Ciolek, Submarine Water Bill, Toledo Lawyer, Toledo Public Utilities, Water Biils, Water Liens
Bell promises new policy on overdue bills City will continue liens, but become ‘more user-friendly’
Bell promises new policy on overdue bills City will continue liens, but become ‘more user-friendly’
By IGNAZIO MESSINA
BLADE STAFF WRITER
Toledo Mayor Mike Bell said his administration has for weeks been working on changing a policy that one of his top administrators called “patently ridiculous” in which a property owner gets a lien because of delinquent utility bills from a previous homeowner.
“This process has been going on since 1986,” Mr. Bell said a day after Lucas County Auditor Anita Lopez told The Blade that she had has stopped processing property water liens from the city because of complaints over the practice.
“Within two weeks, we will have a new policy of debt owed to the city,” the mayor said during a news conference he called to address the issue.
Tom Crothers, director of the Department of Public Utilities for the city, said the city would not completely stop the process of placing liens on properties for delinquent bills from previous owners.
“We recognize, as the mayor indicated, we have to be more user-friendly,” Mr. Crothers said.
Although he said it is “patently ridiculous” for someone to get a lien for a bill they did not create, Mr. Crothers said it is absolutely legal.
However, Ms. Lopez said her office’s attorneys have interpreted the city’s law to say the administration cannot place a lien on a property if the delinquent bills are from a previous owner.
Ms. Lopez on Wednesday said her office is investigating the validity of 2,000 liens from the city filed in 2009 under Mayor Carty Finkbeiner.
But yesterday, Mr. Crothers said the city had filed 1,495 liens last year.
Ms. Lopez also highlighted one extreme case of an individual, who does not wish to be identified, who purchased a home and later learned of a lien on the prop-erty for a delinquent water bill of $7,149.
Mr. Bell said that bill was “taken care of” last week, that the man was no longer responsible for the bill, and the lien would be lifted.
The city has been behind in collections in the water department.
City Council voted April 13 to put more collection firms to work to bring in $18.7 million in water and sewer bills. The ordinance allows the city to contract with three agencies.
Of that money, $5.4 million represents current invoices that have been sent out less than 30 days ago; $1.1 million is less than 60 days delinquent, but more than 30 days delinquent; $632,000 is less than 90 days delinquent, but more than 60 days delinquent; $1.4 million is less than 180 days delinquent, but more than 90 days delinquent; $1.7 million is less than 365 days delinquent, but more than 180 days delinquent; and $8.4 million is greater than 365 days delinquent.
The city considers $13.3 million delinquent from water, sewer, storm water, and garbage services, said Jeff Pax, manager of utilities administration for the city.
Contact Ignazio Messina at:
imessina@theblade.com
or 419-724-6171.
In: Uncategorized · Tagged with: City of Toledo, Foreclosure, Lucas County, Mayor Mike Bell, Old Bills, Toledo Blade, Water Bills
Some Toledo Water Liens Illegal
From 13ABC I-Team News:
Dozens of you have voiced your opinion about the questionable collection practices we uncovered in the city of Toledo. Now the I-Team has found there could be an effort to make them illegal.
We met with an attorney today who says a number of property owners are waiting to see what changes Mayor Mike Bell makes to the city’s collection policies. If they don’t like what they see, they’ll take the city to court.
Scott Ciolek says Toledo’s collection practices don’t match up with Ohio law. Our I-Team investigation found Toledo is trying to force some homeowners to pay a previous owner’s unpaid water bill.
Ciolek says the city can’t do that. “The lien is only good against the user of the water, not against subsequent owners.”
Mayor Bell reacted to our investigation, promising changes. Still, he said what’s been done is legal. That’s important because many homeowners are now asking for their money back.
Yesterday, Bell said, “We haven’t been doing anything illegal so somebody talking about a refund that’d be something we’d have to evaluate but I’m not going to necessarily say that’s the direction we’re going in because that is the process. What we’re trying to do now under the new policy is get it right.”
Ciolek says the only right way is never force a homeowner to pay somebody else’s bill. He’s working with a group of property investors. He says the investors are willing to pay his legal fees to ensure they don’t have to fight the city on old water bills for the properties they own, or the properties they buy. “If we get a declaratory judgment from a local district judge or a court of appeals judge that would make a clear statement about what the law is in this district.”
Such a judgment could potentially mean protection for every Toledo homeowner. For now, before buying a home it’s best to check with the city and make sure the water bill is current. And if you’ve received a bill from an old owner, the city says you can appeal. The city has already dropped some of the cases we first discovered.
In: Uncategorized · Tagged with: Scoot Ciolek, Submarine Water Bill, Toledo Lawyer, Toledo Public Utilities, Water Biils, Water Liens
Ohio court won’t block GOP panel candidates
The Ohio Supreme Court yesterday rejected an attempt by Republican Paul Hoag to disqualify 52 candidates for the Lucas County Republican Party Central Committee who are allied with Jon Stainbrook.
The case stems from the continuing dispute over control of the county GOP and the Ohio Republican Party’s failure so far to resolve the issue.
The justices unanimously ruled that they would not second-guess the county board of elections’ decision to reject Mr. Hoag’s challenges to the 52 central committee candidacies.
The board dismissed his challenges on grounds that he didn’t have standing to make them, either as a voter in the precincts in question or as the unquestioned chairman of the committee.
He claimed that the candidates could not sign a declaration of candidacy stating they are “qualified electors,” then register to vote, while at the same time submitting declarations of candidacy to the board of elections.
“… (A)s Hoag himself concedes, his status as chair of the Lucas County Republican Party Central Committee is disputed and his claim has been submitted by the board of elections to the Ohio Republican Party State Central Committee for resolution,” the court wrote.
It found that Mr. Hoag, a Springfield Township resident and treasurer of the state party, failed to prove that the board of elections abused its discretion or clearly disregarded the law when it dismissed his claims and certified the candidates for the May 4 primary ballot.
“This was another failed attempt to intimidate, harass, and scare people away from running for central committee… ” Mr. Stainbrook said. “They did this when they should have been focused on working to get Republicans elected, not keeping Republicans off the ballot or attacking fellow Republicans.
“It’s been all about keeping control of the party,” he said. “That’s been their true motive. While we were being attacked by them, we did the Karl Rover dinner, we recruited central committee people, and we got one-fourth of the signatures for more than half of the statewide endorsed candidates.”
Mr. Hoag did not return calls seeking comment.
A Lucas County Common Pleas Court judge ruled in February that neither side in the county GOP leadership dispute complied with state law and gave the state party’s central committee 30 days to resolve the matter. The state committee is expected to discuss the issue on Friday at a conference center north of Columbus.
The court still has before it a separate lawsuit filed by the county Republican Party Executive Committee urging it to overturn Secretary of State Jennifer Brunner’s appointment of attorney Ben Marsh to a GOP vacancy on the county elections board and replace him with the committee’s recommended choice, Mr. Stainbrook.
That case argues that Ms. Brunner lacked the authority to opt for a third party rather than those recommended by competing factions supporting Mr. Stainbrook and Jeff Simpson, who also claims to be chairman. Mr. Hoag is part of the Simpson faction.
Justices Maureen O’Connor and Judith Lanzinger had previously removed themselves from the case. Although neither stated a reason, both are Republicans facing Democratic challengers on this year’s ballot.
Chief Justice Thomas Moyer died on April 2, leaving a complement of four sitting justices to decide the case.
Gag order targeted; Coverage limit forbidden, Blade contends
Gag order targeted; Coverage limit forbidden, Blade contends
By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF
COLUMBUS – The Blade yesterday told the Ohio Supreme Court that there is no test that can be applied to circumvent the constitutional right of the press to report on what takes places inside a public criminal trial.
The latest filing before the high court was in reaction to Henry County Common Pleas Judge Henry P. Muehlfeld’s gag order preventing reporters from promptly publishing or broadcasting what they see or hear in the manslaughter trial of Jayme Schwenkmeyer, 24.
The order is aimed at preventing information from Ms. Schwenkmeyer’s trial from saturating the public before a jury can be seated in the separate trial a week later of her co-defendant, David E. Knepley, 50. Both are charged with involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.
“According to [Judge Muehlfeld and his court, The Blade] ‘comes close to asserting’ that the Ohio and United States Constitutions absolutely forbid prior restraints of the kind at issue in this case,” reads the brief filed by the newspaper’s attorneys, Fritz Byers and Scott Ciolek.
“This description is inaccurate,” it adds. “[The Blade] does not merely ‘come close’ to so arguing. An absolute prohibition is, rather, exactly what the Constitutions impose.”
At The Blade’s request, the Supreme Court placed the judge’s gag order on hold two months ago while it considers the case. Judge Muehlfeld last week asked the court to schedule oral arguments. It has yet to rule on that motion.
The court’s attorneys argued in a brief filed that week that the judge took into consideration how pretrial publicity made it difficult to seat a jury in an earlier attempt to try Ms. Schwenkmeyer, how much the rural county is saturated by local media interested in the case, and how the Internet has accelerated the dissemination of news in recent years.
“These facts came together to form a consistent picture of a rural, thinly populated county where many of the alternatives for assuring [Mr. Knepley] a fair, appeal-proof trial, short of a temporary, prior restraint of the press, were unlikely to work,” the Henry County court’s brief read.
The Blade, however, challenged the judge’s ability to reach such conclusions without holding an evidentiary hearing. It also took aim at the argument that modern advances in communications like the Internet have changed the dynamic.
“Every advance in communications technology raises new possibilities and new practical questions,” The Blade argues. “It is precisely the function of the Constitution to assure the timelessness of our core liberties, to provide for their protection without regard to technological change, and to erect an enduring barrier against the whims of those who would scuttle the Constitution in the face of some supposedly novel crisis that requires a supposedly new society fix.”
The newspaper has contended Judge Muehlfeld has other options short of a gag order on a free press that, though complicated, could work. Those options include closer questioning of potential jurors to detect bias, simultaneous trials, or simultaneous jury selection for both trials.
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
Ohio Supreme Court Rejects Gag Order
Ohio court rejects judge’s gag order on media
Photo
Judge Keith Muehlfeld of Henry County Common Pleas Court had said the gag order was to prevent tainting of a jury pool.
By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF
COLUMBUS — The Ohio Supreme Court found unanimously yesterday that a Henry County judge’s gag order preventing the media from promptly reporting on a local manslaughter trial was “patently unconstitutional.”
At the request of The Blade, the court made permanent its prior temporary order preventing Common Pleas Judge Keith Muehlfeld from enforcing his order.
“Judge Muehlfeld’s analysis proceeded from the erroneous premise that a criminal defendant’s constitutional right to a fair trial should be accorded priority over the media’s constitutional rights of free speech and press,” the court wrote.
It noted U.S. and Ohio Supreme Court precedent that the court’s first duty is to try to protect both, not choose between them.
“The judge’s refusal to accord equal importance and priority to the media’s First Amendment rights was thus plainly erroneous,” the court wrote.
All six current members of the court agreed with The Blade’s position.
The late Chief Justice Thomas Moyer was not involved in this decision, but prior to his death on April 2 had joined other members of the court in the temporary order placing Judge Muehlfeld’s order on hold while it more fully considered the case.
The Blade’s attorneys, Fritz Byers (with Co Counsel Scott Ciolek) said the decision was not surprising given that it confirmed long-standing constitutional principles.
“But the decision is especially noteworthy for its rejection of the argument that we must revise and sacrifice our constitutional rights and our system of open government to accommodate evolving technologies,” he said.
“That argument is common and tempting, but it is dangerous, and the court’s ringing rejection of it is an important statement,” he said.
Judge Muehlfeld’s office said he had no comment on the decision. Ronald Kozar, a Dayton lawyer who represented the judge, said he had not seen the ruling and could not comment.
Judge Muehlfeld issued the gag order for the Dec. 7 trial of Jayme Schwenkmeyer, 24, who is charged with involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.
Because Ms. Schwenkmeyer’s then-boyfriend and co-defendant, David E. Knepley, 50, was to go on trial on the same charges Feb. 8, Judge Muehlfeld said restrictions on immediate reporting on the first trial were necessary to prevent the tainting of the jury pool for the second.
Ms. Schwenkmeyer’s first trial in December ended in a mistrial, and a new trial was then set for Feb. 1, one week before Mr. Knep-ley’s, with the same gag order in place.
The order would have allowed reporters to attend Ms. Schwenkmeyer’s trial along with the general public, but it would have forbidden them from publishing or broadcasting what they saw and heard until after Mr. Knepley’s jury was seated.
Trials on hold
Both trials were placed on hold while the First Amendment issue was before the Ohio Supreme Court. Neither had been rescheduled yesterday, although attorneys for both defendants said they were eager to conclude the cases.
“I don’t think that the Supreme Court ruling is going to have any greater effect on my client’s ability to get a fair trial because we’re going first,” said David Klucas, a Toledo lawyer who represents Ms. Schwenkmeyer. “If there is fallout that punishes a defendant in this case, it will be for Mr. Knepley who goes second.”
Clayton Crates, a Defiance lawyer who represents Mr. Knepley, said he had not decided whether to seek a change of venue for his client’s trial.
Mr. Crates, who requested the gag order prior to Ms. Schwenkmeyer’s trial in December, said he respected the Ohio Supreme Court’s decision.
“In this whole thing, it was never my intention to subvert the interests of the media, only to advance and protect the rights of my client,” Mr. Crates said.
In their brief, lawyers for Judge Muehlfeld and his court argued that the advance of the Internet has introduced elements into the debate not present when the U.S. Supreme Court issued its definitive ruling in this realm in a 1965 Nebraska case.
“In the two decades after [that ruling], a juror could avoid news by simply keeping televisions and radios turned off at dinnertime and bedtime and avoiding the newspaper,” the brief read.
“Today, however, every computer, laptop, BlackBerry, iPod, and cell phone is a medium for the potential receipt of e-mails, pop-ups, videos, Facebook posts, and Twitter tweets on every news item, celebrity pratfall, or random happening that any other user of the Internet deems worthy of posting or sending.”
The state Supreme Court, however, noted that the judge’s lawyers cited no case in which advances in technology had prompted a court to retreat from the 1965 standard.
Judge faulted
The high court faulted the judge for not holding an evidentiary hearing before issuing his order.
It found that he too quickly dismissed alternatives to prevent publicity from the first trial from infecting the jury pool in the second, such as more in-depth questioning of potential jurors, delaying the second trial, sequestration of the jury, and targeting the issue in the court’s instructions to the jury.
It specifically questioned the judge’s rejection of the idea of moving the trial outside Henry County because of the potentially high cost for the small rural county.
“Henry County borders Lucas County, a populous county, which would offer a more expansive jury pool that would be less likely to be impacted by the pretrial publicity,” the court wrote.
“We have also rejected a similar argument concerning costs of changing venue as a reason to justify a prior restraint. And the common pleas court is authorized to order the appropriation of reasonable and necessary expenses to cover any additional costs,” the court wrote.
The Washington-based Reporters Committee for Freedom of the Press, which filed a brief with the court supporting The Blade’s position, hailed the decision.
“I am honestly astonished at how many trial court judges have no idea what the law is in this area,” said Lucy A. Dalglish, the committee’s executive director. “We deal it with every day. Most reporters have a better sense than most sitting judges. I find that bizarre, but I’ve been doing this long enough to know it’s true.
“This judge wasn’t doing anything malicious,” she said. “He just wasn’t up to speed on the law. We’re now hopeful that all the other judges in Ohio will have their recollection of basic First Amendment law refreshed.”
Chris Link, executive director of the American Civil Liberties Union of Ohio, noted that it wasn’t that Judge Muehlfeld didn’t have valid concerns.
“They were not well balanced with other issues like openness,” she said. “Judges are coming up with, in part with homeland security, reasons to close a courtroom, for suppression of the press, and less allowing for the public to be present. There’s been more discretion for judges, so this is a very good outcome from the Ohio Supreme Court.”
Staff Writer Jennifer Feehan contributed to this report.
Contact Jim Provance at: jprovance@theblade.com,or 614-221-0496.
In: Uncategorized · Tagged with: 1st Amendmend, Fritz Byers, Scott Ciolek, Toledo Blade
Blade says it has constitutional right to cover Henry Co. trial
By JIM PROVANCE
BLADE COLUMBUS BUREAU CHIEF
COLUMBUS — The Blade yesterday told the Ohio Supreme Court that there is no test that can be applied to circumvent the constitutional right of the press to report on what takes places inside a public criminal trial.
The latest filing before the high court was in reaction to Henry County Common Pleas Judge Henry P. Muehlfeld’s gag order preventing reporters from promptly publishing or broadcasting what they see or hear in the manslaughter trial of Jayme Schwenkmeyer, 24.
The order is designed to prevent information from Ms. Schwenkmeyer’s trial from saturating the public before a jury can be seated in the separate trial a week later of her co-defendant, David E. Knepley, 50. Both are charged with involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken.
“According to (Judge Muehlfeld and his court, The Blade) ‘comes close to asserting’ that the Ohio and United State Constitutions absolutely forbid prior restraints of the kind at issue in this case,” reads the brief filed by the newspaper’s attorneys, Fritz Byers and Scott Ciolek.
“This description is inaccurate,” it adds. “(The Blade) does not merely ‘come close’ to so arguing. An absolute prohibition is, rather, exactly what the Constitutions impose.”
At The Blade’s request, the Supreme Court placed the judge’s gag order on hold two months ago while it considers the case. Judge Muehlfeld last week asked the court to schedule oral arguments. It has yet to rule on that motion.
The court’s attorneys argued in a brief filed that week that the judge took into consideration how pretrial publicity made it difficult to seat a jury in an earlier attempt to try Ms. Schwenkmeyer; how much the rural county is saturated by local media interested in the case, and how the Internet has accelerated the dissemination of news in recent years.
“These facts came together to form a consistent picture of a rural, thinly populated county where many of the alternatives for assuring (Mr. Knepley) a fair, appeal-proof trial, short of a temporary, prior restraint of the press, were unlikely to work,” the Henry County court’s brief read.
The newspaper has contended that Judge Muehlfeld has other options short of a gag order on free press that, while complicated, could still work. Those options include closer questioning of potential jurors to detect bias, simultaneous trials, or simultaneous jury selection for both trials
Contact Jim Provance at:
jprovance@theblade.com
or 614-221-0496.
In: Uncategorized · Tagged with: 1st Amendment, First Amendment, Free Speech, Freedom of the Press, Henry County, Ohio Criminal Defense Lawyers, Ohio Supreme Court, Prior Restraint, Toledo Blade, Writ of Prohibition
Henry County judge cannot enforce his order preventing journalists from reporting.
Article published January 29, 2010
Ohio’s top court bars gag order for now
Ruling temporary until further review
By JIM PROVANCE
and JENNIFER FEEHAN
BLADE STAFF WRITER
COLUMBUS – A Henry County judge cannot enforce his order preventing journalists from promptly reporting on an involuntary manslaughter trial – at least for now. The Ohio Supreme Court yesterday sided with The Blade and temporarily placed on hold Common Pleas Court Judge Keith P. Muehlfeld’s gag order until the state’s highest court can fully review the matter. The 6-1 decision, which did not come with a written opinion, says nothing about whether Judge Muehlfeld should proceed with Monday’s scheduled retrial of Jayme Schwenkmeyer, 24. She faces charges of involuntary manslaughter and child endangerment in the 2007 drug overdose death of her 13-month-old daughter, Kamryn Gerken. The Blade had characterized Judge Muehlfeld’s gag order as “patently unconstitutional” prior restraint of the First Amendment rights of free speech and press. “The Blade is pleased that the Supreme Court promptly suspended the trial court’s prior restraint, so that The Blade and all other media can report freely on the trial and the public can learn about it. And The Blade looks forward to briefing the matter fully for the Supreme Court to demon-strate further the unconstitutionality of the order,” Fritz Byers, the newspaper’s attorney, said. The high court has set up a schedule for both sides to file evidence and briefs in the case, a schedule that could delay a final ruling by up to 50 days.Justice Maureen O’Connor cast the dissenting vote. She indicated that she would have made a final ruling for The Blade now.
Judge Muehlfeld issued the gag order in December and then reaffirmed it this week for Ms. Schwenkmeyer’s retrial. Jury selection for the separate trial of a second defendant, David E. Knepley, 50, on similar charges is expected to begin a week later. Judge Muehlfeld’s order would not have prevented reporters from attending the first trial, but it would have prohibited them from publishing or broadcasting what they saw or heard until after a jury was seated in Mr. Knepley’s case. Mr. Knepley’s attorney had argued that the order was necessary to prevent publicity associated with the first trial from tainting the jury pool in the second. The decision was issued late yesterday afternoon. Judge Muehl-
feld could not be reached for comment after the ruling, but earlier in the day he declined to comment on the newspaper’s action. The American Civil Liberties Union of Ohio applauded the decision. The organization said there was a good chance it may seek to intervene in the case as it proceeds. “We’re all about civil liberties and constitutional rights, and we recognize that the press and the public have free speech rights under the First Amendment, but we also believe the defendants have rights under the Fourth, Fifth, and Sixth amendments to receive a fair trial,” staff counsel Carrie Davis said. “The reason it’s important to have this freedom of the press in the courtroom is all about transparency,” she said. “It’s the public’s right to know what’s happening in their government, including the courts.” Ms. Davis said challenging the judge’s unusual gag order is important, not just for journalists, but for members of the public who may attend court proceedings and blog about what they observe. “If it was allowed to stand, it creates this horrible precedent that anytime anyone even raises a concern about a trial or whatever proceeding, they would prohibit the press or the public for that matter from reporting on it,” she said. “It really affects a lot of us.” Contact Jim Provance at:
jprovance@theblade.com,
or 614-221-0496.