WAVERLY, Ohio — Jake Wagner testified for three days against his brother, George Wagner IV, but he was not seen on video nor heard on audio the entire time.
Jake has already pleaded guilty to the murders of eight members of the Rhoden family in Pike County, and as part of his plea agreement, he must testify against George, who is also accused of the murder of eight members of the Rhoden family and the first person to go on trial for the massacre.
Jake, like many other witnesses in the trial, objected to being recorded on video or audio by the media attending the trial.
Per the Ohio State Supreme Court's rules of superintendence for the courts of Ohio, section 12, all victims and witnesses participating in a trial have a right to object to being filmed, videotaped, recorded or photographed.
"The filming, videotaping, recording, or taking of photographs of victims or witnesses who object shall not be permitted," reads the Ohio State Supreme Court's rules.
The court's rules leave the determination on how to handle that right up to each individual judge presiding over trials throughout the state of Ohio.
In the case of the Pike County murder trial, Judge Randy Deering has ordered all witnesses swearing in to testify can leverage this option.
Witnesses are given a paper form before they're called, where they can check whether they consent to be fully recorded, whether they consent to only have their audio recorded or whether they do not consent to any form of recording during their testimony.
Since this blocks the recording of witnesses, that also means there is no recording created to use in on-air coverage on any of the stations covering the trial. The only way to hear the testimony of these witnesses is to physically be in the court room, taking notes with pen and paper, since Deering has also banned all electronics from the courtroom.
Several media outlets covering the trial, including WCPO, jointly filed a motion in September to request that the state's main witnesses, the defendant's brother Jake and mother Angela, be denied the ability to opt out of being recorded while they testify.
Both the prosecution and the defense requested the state deny the motion and, ultimately, Deering did deny it.
The first two days of Jake's testimony were done without audio or video recording, until Tuesday, when Deering's court was overruled by a higher court of appeals, which stated that a hearing must be had about each individual witness who objects to recording. During that hearing, in order for the witness to refuse recording, the court must find "that there exists a reasonable and substantial basis for believing that public access could harm or endanger the fairness of adjudication, the potential for harm outweighs the benefit of public access, and there are no reasonable alternatives to closure."
A hearing was held before the murder trial resumed on Wednesday morning. Attorneys for the state, George Wagner IV and Jake Wagner all argued that it would not be in the interest of a fair trial to change the rules mid-testimony for Jake, remarking that he could become less comfortable in sharing information if recorded when he desired not to be. A witness was also called to the stand to elaborate on the dangers that it could present to Jake in jail if he was recorded. That witness was Robert Hordon, a 19-year employee of the Chillicothe Correctional Institute. He stated that there was often an added danger for inmates who have testified against other inmates.
Attorney Jack Greiner argued on behalf of the media in the courtroom who had filed the motion to record Jake, which WCPO was a party in. Greiner cross-examined the same witness, asking him if they kept their inmates safe, regardless of elevated threats, asking "you all know what you're doing, right?" The witness confirmed with a simple "yes".
No further arguments were presented, and Judge Deering ruled that Jake would not be recorded, in the interest of a fair line of questioning for both the prosecution and the defense, so as to not change the rules "midstream."
Greiner asked for audio-only recording as a concession, but Judge Deering denied that as well.
Judge Deering did say they would hold a hearing before every witness who has objected to being recorded to present arguments on both sides as to why they should or should not be recorded on video or audio.
