Judge bans media from woman's trial in Henry County

1/18/2010
BY JENNIFER FEEHAN
BLADE STAFF WRITER

NAPOLEON - Two and a half years ago, 13-month-old Kamryn Gerken died in a most unlikely way.

Inside the Napoleon apartment where she lived with her mother and her mother's boyfriend, the once-healthy toddler somehow ingested "toxic amounts of multiple drugs," the coroner ruled.

Among the drugs in her system was a fatal dose of oxycodone, a prescription painkiller that has become a popular and addictive drug of abuse.

Now, because of a court order some contend is unconstitutional, the public still may not learn what prosecutors believe happened to young Kamryn - at least not until her mother, Jayme Schwenk-

meyer, has gone to trial and a jury is seated for the trial of David E. Knepley, her mother's former boyfriend.

Judge Keith P. Muehlfeld of Henry County Common Pleas Court has issued an order prohibiting the media from reporting on Ms. Schwenkmeyer's case while her otherwise public jury trial plays out in his courtroom. Her trial is to begin Feb. 1.

The judge said he wants to make sure the public does not read or hear about the first trial because the court will need to seat an impartial jury for Mr. Knepley's trial the very next week.

"It's called damage control," Judge Muehlfeld said. "You try the best you can not to taint the jury pool."

Fritz Byers, a Toledo attorney who specializes in First Amendment law and represents The Blade, has another word for it: unconstitutional.

"Both the First and Sixth amendments guarantee public access to trials and only in the rarest circumstance can a trial be closed to the public," Mr. Byers said. "As a representative of the public and as the press, the newspaper has the constitutional right to attend and report on trials," he said. "Neither the United States Supreme Court nor the Ohio Supreme Court has ever approved an order preventing a newspaper from reporting on events that occur in a public trial because such orders are plainly unconstitutional."

Judge Muehlfeld said he is standing by his decision unless another court tells him otherwise.

"I think the defendant's rights to a fair trial trump the First Amendment," he said.

In 2008, after toxicology reports confirmed Kamryn Gerken's cause of death, Ms. Schwenkmeyer, 24, and Mr. Knepley, 50, were co-indicted on charges of involuntary manslaughter and endangering children.

Prosecutors originally intended to try their cases together, but both defendants filed motions seeking a separation of their cases. Two years have passed as both defendants changed attorneys and requested continuances.

Last month, Ms. Schwenkmeyer finally went on trial, but Judge Muehlfeld declared a mistrial for reasons he said were unrelated to the gag order.

Now, Ms. Schwenkmeyer is scheduled to go on trial a second time Feb. 1.

Mr. Knepley's trial is to follow a week later, on Feb. 8.

Because much of the same evidence is to be presented at both trials, Mr. Knepley's attorney, Clayton Crates of Defiance, filed a motion last month asking the court to issue an order "to prevent the jury pool in his case from being tainted by hearing or reading any published or broadcast media report" of Ms. Schwenkmeyer's trial.

Although some legal experts say there are alternatives to barring the press from reporting what happens in open court, Judge Muehlfeld said he sees no way around it.

"I don't know any other practical way to prevent the tainting of a second jury," the judge said. "One reason is it's a small community, and the timing between the trials. They're going to be back to back."

Neither Henry County Prosecutor John Hanna nor Ms. Schwenkmeyer's attorney, David Klucas of Toledo, objected to the gag order.

Mr. Crates declined to comment, citing Judge Muehlfeld's order, which also prohibits attorneys, witnesses, and all others involved in the cases from speaking to the media.

Mr. Klucas said he didn't know if the judge's order was legal or not, but that as Ms. Schwenkmeyer's attorney, he was not opposed to it.

He said he knows it can be difficult to seat a jury in rural counties such as Henry County, which has a population of just under 29,000.

"The smaller the community, the harder it is to find people who haven't heard of the case," Mr. Klucas said. "This is a small town."

Still, there are alternatives for situations like this, said Ric Simmons, an associate professor of law at the Moritz college of law at the Ohio State University.

"You can move the trial to another county, which I know is more expensive, but that's the cost of doing business in a country where we have a free press," Mr. Simmons said.

Courts hear high-profile cases routinely, he said, and it is the court's job to seat a jury that can strive to be objective despite what it has heard about the case.

"You have voir dire or jury selection, and the whole point of that is to weed out potential jurors who can't push the news coverage out of their minds," Mr. Simmons said.

"Most jurors, from my experience, are able, with the judge's instructions, to put what they've heard out of their minds. I think that usually works, and our system is built on the fact that it usually works."

Judge James Bates of Lucas County Common Pleas Court said he once tried two defendants in a murder case separately but simultaneously by seating a jury for one case in the morning and seating a jury for the other in the afternoon.

The trial proceeded with one jury sitting on one side of the courtroom, the other jury sitting across the room. When one jury was not supposed to hear any particular testimony, he said, it was removed temporarily from the courtroom.

"It probably added a day or so to the trial, but it worked quite well and nothing happened on appeal and nobody said there was any problem," the judge said.

The dual trial was held because nearly all the witnesses were coming to Toledo from Florida, and the court didn't want to make them travel to Ohio twice. At the same time, the defendants had implicated each other in the crime so their trials had to be separate, he said.

Judge Bates recalled two other criminal trials in Lucas County in which co-defendants were tried simultaneously but in separate courtrooms with different judges and juries to prevent problems with news coverage.

"One of my recommendations, and I've given this to other judges and other jurisdictions, is don't gag the news media. Gag the jurors because we have control over jurors," Judge Bates said. "We can instruct jurors not to say anything, not to do anything, whereas we don't have that control over the news media."

Contact Jennifer Feehan at:

jfeehan@theblade.com,

or 419-724-6129.