Ohio Attorney General Mike DeWine
In response to your Sept. 29 editorial “DeWine’s failure”:
I believe strongly in open and transparent government. So far in 2014, my office has conducted 32 public records trainings across Ohio. We’ve spearheaded an online public records training program, and launched a mediation program that provides a forum for local governments and those requesting public records to resolve their differences.
And when a private college police department argued that its records were exempt from Ohio’s public record laws, I joined with open government advocates urging the Ohio Supreme Court to find that those law enforcement records should be open to the public.
However, “open government” does not mean irresponsible government. Publicly disclosing key evidence while a criminal investigation is ongoing — as in the release of the Beavercreek Walmart surveillance videos of John Crawford III being shot — can cause unfair prejudice
When investigators at the Bureau of Criminal Investigation received the surveillance tapes from Walmart as part of their investigation, I made the initial decision not to release the videos only after receiving advice from professional staff and lawyers in my office about our obligations under Ohio’s public records laws and under the constitutional and ethical provisions relating to the conduct of criminal investigations and prosecutions.
Ohio public records law provides that evidence gathered by law enforcement in connection with a criminal proceeding is protected while the matter is pending. This exception states that investigatory “work product” is protected during the investigation.
Known as the Confidential Law Enforcement Investigatory Records (CLEIRS) exception, it applied in the Beavercreek case. Once the grand jury concluded and the work product exception no longer applied, the videotape was immediately released.
As the Ohio Supreme Court has held, virtually everything contained in a prosecutor’s file is considered work product: “It is difficult to conceive of anything in a prosecutor’s file, in a pending criminal matter, that would not be either material compiled in anticipation of a specific criminal proceeding or the personal trial preparation of the prosecutor.”
Any prosecutor must balance the idea of transparency and the public’s need for information with the need to ensure that the investigative process is fair and balanced. Ethical and constitutional concerns exist in publicly releasing evidence in a criminal case prior to trial.
Every attorney has an obligation to ensure that his or her actions and statements outside the courtroom do not negatively impact the fairness of what happens inside the courtroom. And every suspect has a right to an impartial jury of his or her peers. Releasing the Walmart video before the case was concluded would have violated both of those principles.
The Rules of Professional Conduct caution all attorneys to refrain from disclosing information that is likely to prejudice court proceedings. The rules not only recognize the heightened risk of tainting a criminal proceeding, but also specifically caution against the disclosure of the identity or nature of “physical evidence” that would be presented at a criminal proceeding.
The videos in the Beavercreek case were clearly critical evidence and would be presented in any criminal proceedings. The possibility that publicly released evidence could improperly sway the opinions of potential jurors is precisely why prosecutors must be cautious about disclosing evidence prior to trial.
Prosecutors also have an obligation under the Constitution to ensure that every person receives a fair trial. That includes access to an impartial grand jury. The job of a prosecutor is not to seek convictions, but to seek the truth and ensure that justice is done.
The risk that pretrial publicity can taint a criminal proceeding is one that has long been recognized by the U.S. Supreme Court. As the court cautioned: “Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”
We should be mindful as well of what Justice Oliver Wendell Holmes, Jr., cautioned nearly 100 years ago: “The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”
When Greene County Common Pleas Court appointed Mark Piepmeier as the special prosecutor in the Beavercreek case on Aug. 27, 2014, he could have changed course and released the videos to the public. He did not. He waited until the grand jury concluded its work. He determined that releasing the videos prematurely created too great of a risk of tainting the judicial process.
Similar decisions have been made by the U. S. Department of Justice in the Ferguson investigation, and by the Salt Lake City police chief regarding an officer-involved shooting.
If anyone, including the media, had disagreed with my decision or the appointed special prosecutor’s decision not to release the videos, they could have filed a legal action seeking disclosure. I remain confident that had such an action been filed, the courts would have agreed that the video was not subject to disclosure.
Ohio Attorney General Columbus
To help addicts, provide funds for medicine
You have published several editorials about the large increase in heroin deaths in Lucas County, and what Sheriff John Tharp and Prosecutor Julia Bates believe needs to be done to stem this tide (“Communitywide responders,” editorial, Sept. 11).
There should be programs to help all individuals with any opiate addiction. One of the drugs used to help stem addicts’ urge is Suboxone.
What hasn’t been mentioned is the cost to an addict to obtain this drug. Not everyone has health insurance, and those who do may have an insurance plan that does not cover the cost of the drug.
If we really want to help those who attempt to stay away from opiates and heroin, then we should help with the financial burden that many times can fall to the family members of an addict.
Our society seems to have all kinds of financial programs to assist in other terrible situations, but not this particular one. Perhaps it is the stigma of the word “addiction” that prevents any financial help. I hope not.
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