CINCINNATI — The largest public corruption trial in Ohio history resumed Wednesday after being canceled for a day and a half after a second juror tested positive for COVID.
So far COVID has caused nearly six days of missed court time, two jurors to be dismissed and the requirement of new safety measures to keep remaining jurors healthy, especially after eight jurors got stuck in an elevator together at the federal courthouse on Monday.
On Tuesday morning, a second juror tested positive for COVID.
“The key to going forward … is we need to contain this within the next three days,” said U.S. District Court Judge Timothy Black on Wednesday, after announcing that for the rest of the week all jurors must wear N95 masks, take at-home tests for COVID each morning before coming to court, and social distance from each other while in the jury room and on the bus together to and from the courthouse.
“I am so impressed with your grit and determination and continuing commitment,” Black said, as he apologized to the jurors who got stuck in the elevator. “We need you here and we need you healthy. We can’t do this without you.”
The trial of former Ohio House Speaker Larry Householder and ex-GOP chair Matt Borges likely cannot continue with fewer than 12 jurors, which the law usually requires for a verdict in a criminal trial. There is a rare exception for illness, which would allow 11 jurors to deliberate, but only in the unlikely scenario that all parties agreed, said attorney and former prosecutor Steve Goodin.
“The issue is whether this gets into mistrial territory, I mean that’s ultimately the question,” Goodin said. “Once COVID gets loose in a jury pool it is a very difficult kind of circumstance. It is pretty rare for it to happen twice.”
Attorneys selected 16 jurors at the start of the case on Jan. 20 — including four alternates.
Opening statements and testimony began on Jan. 23, but prosecutors only were able to put on their case for two days before a juror tested positive for COVID. The judge stopped court proceedings until Jan. 31. Ultimately Black dismissed a juror who declined to wear a mask or take an at-home COVID test before returning to the jury box.
Since then, jurors, attorneys, spectators and the judge have been wearing masks in the courtroom. Despite that, a second juror tested positive for COVID last Tuesday morning.
In response, Black said he had ramped up air filtration in the jury room and courtroom. If jurors continue to produce negative tests each day, the judge said they can switch to more comfortable masks next week.
Goodin said these delays are especially difficult for prosecutors, who are trying to present a complicated case, because jurors may forget testimony from days before. The government is also revealing its case to the defense team, in the event a mistrial is declared in the future and the case must be tried all over again.
Prosecutors say it is the largest bribery scandal in Ohio history, involving $61 million in dark money that was funneled through a complicated scheme to buy legislators and state law.
Former Ohio House speaker Larry Householder and Borges are accused of participating in a racketeering conspiracy to help Householder get elected and win control of the house, pass a $1.3 billion nuclear bailout known as House Bill 6 and defeat a ballot initiative to block it. Both have maintained their innocence.
FBI case agent Blane Wetzel has been on the witness stand for seven days, detailing how the government built its case through hundreds of bank and phone records, text messages, spreadsheets and timelines, and transcripts of secret recordings. But his testimony has been interrupted by two separate COVID delays.
Akron-based FirstEnergy Corp. admitted its guilt, signed a deferred prosecution agreement and agreed to pay a $230 million fine in the case.
Two defendants, First Energy lobbyist Juan Cespedes and Householder adviser Jeff Longstreth, have pleaded guilty and are expected to testify at the trial.
The unrelated public corruption trial of former Cincinnati City Councilman P.G. Sittenfeld also experienced several days of delay when a juror tested positive for COVID in late June. In response U.S. District Court Judge Douglas Cole did not allow spectators to sit in the first two rows of seats near the jury box. While many spectators wore masks in the courtroom, he did not require it.
The Sittenfeld trial was much shorter, only lasting three weeks, and it did not experience a second COVID outbreak.
The same prosecutors who won a conviction against Sittenfeld for bribery and attempted extortion, are leading the case against Householder and Borges.
The current statehouse trial was originally expected to last four to six weeks, but it is unknown when it will end now with so many delays.
"Despite the delays we are actually on track," Black told jurors on Wednesday.
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