CINCINNATI — Cincinnati City Councilman P.G. Sittenfeld’s public corruption trial may be over, but an appeals court must rule on several emergency issues that could have lasting consequences.
A jury convicted Sittenfeld of bribery and attempted extortion for accepting thousands in campaign donations from undercover FBI agents who were posing as developers, in exchange for help on a downtown development project.
But the high-profile case did not end with the July 8 verdict.
Now several separate issues – including petitions filed by WCPOand The Cincinnati Enquirer related to public access – are before the 6th U.S. Circuit Court of Appeals in Cincinnati, which may rule as soon as this week.
Sittenfeld’s attorneys are accusing a juror of misconductfor posting repeatedly on Facebook during the trial. They asked U.S. District Court Judge Douglas Cole, who oversaw the three-week trial, to declare a mistrial and order a forensic examination of that juror’s electronic devices.
Cole denied the motion for a mistrial. And he made a ruling on the juror forensic exam, but he placed it under seal, meaning the public cannot read it or know what he decided and why.
WCPO filed a petition with the appeals court on Aug. 3 asking for Cole to unseal the order. Cole never made public his reasons for keeping it secret in the first place.
“It’s extremely important. The rule of law depends on transparency and accountability, and in a democracy, we don’t have Star Chambers where there are secret dispositions,” said Northern Kentucky University law professor Ken Katkin, who is an acquaintance of Sittenfeld.
Cole apparently denied the motion for a forensic exam, because Sittenfeld’s attorneys filed an emergency motion with the appeals court on Aug. 15 to overturn his secret order.
“Petitioner respectfully requests that this motion be heard on an emergency basis, as the electronic communications at issue are highly likely to be lost or destroyed if not produced immediately,” wrote Gus Lazares, an attorney for Sittenfeld.
The appeals court motion is heavily redacted, apparently to abide by Cole’s earlier order to keep the issue under seal. So the public does not know why Cole denied the motion for a forensic exam or if Sittenfeld’s attorneys were allowed to further question jurors after the trial about potential media exposure, social media posts or bias.
Sittenfeld's attorneys allege Juror X posted to Facebook that another juror, referred to as Juror Y, shouldn't have been on the jury because she "hates anyone that shares the same profession as our person on trial. Not cool!!" In the comments to that post, someone shared a news article about the case.
She also criticized another juror for talking too much, saying she, “Doesn’t know a comfortable silence. Kinda wish her tongue would fall out.”
Court employees discovered the juror’s Facebook posts and attorneys were given screenshots of them shortly before the verdicts were announced on July 8.
After the discovery of the Facebook posts, Sittenfeld’s attorneys asked for a mistrial but the judge denied that motion.
Following the jury’s verdict, the judge held a secret hearing in his chambers and allowed Sittenfeld’s attorneys to examine Juror X under oath about her social media postings.
The Enquirer filed a motion with the appeals court last week for transcripts of secret hearings involving the juror issue, which took place in Cole's chambers, and unredacted versions of the motions filed by Sittenfeld's attorneys and prosecutors.
“If the judge decides to order a mistrial and retry the case — the public has a significant interest in understanding the reasons why the judge has done that,” said Darren Ford, an attorney representing WCPO. “The only way that the public can monitor what is officially happening in court is through its official records, and that’s the docket.”
It is uncertain when the appeals court will rule on these motions but it could have a far-reaching impact.
“Getting a ruling from the Sixth Circuit Court of Appeals is something that will provide guidance to not only the particular judge at issue, but all judges across the territory covered by that court of appeals. So that would be Michigan, Ohio, Kentucky and Tennessee,” Ford said. “Now when judges are faced with the same situation, they have guidance from Sixth Circuit about what is appropriate to do.”
Katkin predicts a quick decision by the appeals court.
“The Sixth Circuit will probably move quicker on these emergency motions than they would on a typical filing because the parties have made clear, particularly on the writ which deals with the seizure on the juror’s cell phone, that the material will get harder and harder to recover if the court doesn’t move quickly,” Katkin said. “I would actually expect a ruling within a week on that particular motion.”
