[Cite as State ex rel. Cincinnati Enquirer v. Oda, 2018-Ohio-704.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




STATE OF OHIO EX REL. THE           :
CINCINNATI ENQUIRER, A
DIVISION OF GANNETT GP MEDIA, INC., :
                                                                     CASE NO. CA2017-08-130
        Petitioner,                                      :
                                                                          OPINION
                                                         :                 2/26/2018
    - vs -
                                                         :

HONORABLE DONALD E. ODA II,                              :

        Respondent.                                      :



                                 ORIGINAL ACTION IN PROHIBITION



John C. Greiner and Darren W. Ford, 1900 Fifth Third Center, 511 Walnut Street, Cincinnati,
Ohio 45202, for petitioner

D. Vincent Faris, Clermont County Prosecuting Attorney, and G. Ernie Ramos, Jr., Assistant
Prosecuting Attorney, 101 East Main Street, Batavia, Ohio 45103, for respondent



        S. POWELL, P.J.

        {¶ 1} This case involves a review of a petition for a writ of prohibition submitted to

this court on December 13, 2017. Petitioner, The Cincinnati Enquirer, a division of Gannett,

GP Media, Inc. ("Enquirer"), filed its petition with this court on August 28, 2017.

Respondent, the Honorable Donald E. Oda II ("Judge Oda"), filed his answer to the

Enquirer's petition on September 21, 2017. The Enquirer then filed its brief in support of its
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petition on October 10, 2017. On November 1, 2017, Judge Oda filed his response brief in

opposition to the Enquirer's petition. The Enquirer subsequently filed its reply brief in

support of its petition on November 13, 2017. Oral arguments were then held before this

court on December 13, 2017.

       {¶ 2} The matter now properly before this court, the Enquirer seeks a writ of

prohibition to prevent Judge Oda from enforcing the order on courtroom decorum and

pretrial publicity he issued on August 18, 2017 in the case of State v. Richardson, Warren

C.P. Case No. 17CR33292. For the reasons outlined below, the Enquirer's petition for a

writ of prohibition is hereby granted.

                                         The Parties

       {¶ 3} The Enquirer is a newspaper of general circulation in Cincinnati, Ohio. Judge

Oda is a judge for the Warren County Court of Common Pleas who is presiding over the

Richardson case.      In that case, the 18-year-old female defendant is charged with

aggravated murder, involuntary manslaughter, endangering children, tampering with

evidence, and abuse of a corpse after it was alleged she killed her baby and buried the

corpse in the backyard of her Warren County home.

                               Facts and Procedural History

       {¶ 4} On August 9, 2017, Judge Oda issued an interim order on courtroom decorum

and pretrial publicity restricting the parties in the Richardson case from making or

participating in any extrajudicial statement that they would expect to be disseminated by

means of public communication, whether written, broadcast, and/or electronic media, as

well as social media. In issuing this interim order, Judge Oda sua sponte determined that

there was a "substantial probability" that a fair trial would be compromised and potential

jurors would be prejudiced if the parties involved in the case were not prohibited from further

commenting on the case. Continuing, Judge Oda then stated as part of the interim order:

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              The Court notes that the coverage of this case by the press has
              been remarkably fair. Both sides have expressed their
              positions, and neither side appears to have 'the upper hand'
              when it comes to news coverage. The public commentary and
              the right that every American now seems to have to weigh in on
              social media regardless of their knowledge of the facts are
              largely irrelevant. People can think what they want, say what
              they want, tweet or post what they want – the Court is confident
              a Warren County jury has the discernment to disregard this
              information and focus on the facts. However, witnesses talking
              about the facts of the case in advance of trial, press releases,
              attorneys talking about evidence, lack of evidence or trial
              strategy substantially impairs the Court's ability to conduct a fair
              and impartial trial.

       {¶ 5} On August 14, 2017, the Enquirer filed objections to Judge Oda's interim order

alleging there was no evidence in the record to indicate such an order was necessary so as

to ensure the defendant received a fair trial. Three days later, on August 17, 2017, Judge

Oda presided over a hearing on the Enquirer's objections. During this hearing, Judge Oda

– without prompting from any of the parties present at the hearing – admitted a single

exhibit, Exhibit A, a list of links to online news articles reporting on the charges against the

defendant, as well as copies of the corresponding news articles. These news articles were

printed from websites belonging to both local and national media outlets including, but not

limited to, WLWT, WCPO, and Fox 19 from Cincinnati, WDTN and WHIO from Dayton, Fox

8 from Cleveland, and CBS News. Aside from Exhibit A, no other evidence was presented

at this hearing from the state, from the defendant, or from the Enquirer.

       {¶ 6} On August 18, 2017, Judge Oda issued a decision upholding the prohibitions

laid out in his previous interim order, which, as noted above, restricted the parties from

making or participating in any extrajudicial statement that they would expect to be

disseminated by means of public communication, whether written, broadcast, and/or

electronic media, as well as social media. Judge Oda also restricted the parties from (1)

publicly discussing or disseminating evidence gathered in the case, (2) making public


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statements about the case, and/or (3) posting or commenting upon any aspect of the case

on social media.

       {¶ 7} In issuing this decision, Judge Oda found there had been substantial news

coverage of the case and a significant amount of pretrial publicity. This media coverage

included, among other things: (1) statements of the attorneys concerning their opinions

and/or observations concerning the allegations, as well as facts that may or may not be

presented at trial, evidence, possible motives, and trial strategy; (2) statements of

investigators and prospective witnesses regarding facts in connection with the case that

may or may not be true and/or admissible; and, (3) statements from the parties concerning

the case. In so holding, Judge Oda determined that such statements "are a serious and

imminent threat to the jury pool and significantly compromise the Court's ability to conduct

a fair and impartial trial."

       {¶ 8} Similar to his interim order, Judge Oda then stated:

               The news coverage, to this point, has been remarkably fair. It
               appears to be balanced to the extent both the State of Ohio and
               the Defendant have had the opportunity to comment on their
               side of the case and have been quoted by the media. However,
               there is a substantial probability the fairness of the proceedings
               will be compromised and potential jurors will be prejudiced by
               extrajudicial statements made by Parties to the Case. Such
               statements are a clear and present danger to the right of the
               State of Ohio, the Defendant and the public to a fair trial.

       {¶ 9} As noted above, on August 28, 2017, the Enquirer filed a petition with this

court seeking a writ of prohibition against Judge Oda. In support of its petition, the Enquirer

alleged that the order at issue, just like the interim order before it, was deficient and legally

defective in that it lacked the requisite findings supported by evidence in the record

indicating such an order was necessary to ensure the defendant received a fair trial. In

response, on September 21, 2017, Judge Oda filed an answer generally denying the

Enquirer's allegations. After the parties filed their respective briefings with this court on

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October 10, November 1, and November 13, 2017, and following oral arguments, the matter

was submitted to this court for review on December 13, 2017.

                                     Writ of Prohibition

       {¶ 10} Prohibition is an extraordinary writ issued by a higher court to a lower court to

restrain the unauthorized exercise of judicial power. State ex rel. Daily Reporter v. Court of

Common Pleas of Franklin Co. 56 Ohio St.3d 145 (1990). There is no dispute that a writ of

prohibition is the proper procedure through which the Enquirer may challenge the order

issued by Judge Oda in this case. There is also no dispute that the Enquirer has standing

to seek such a writ against Judge Oda. However, because a writ of prohibition should be

issued with great caution and only in cases of extreme necessity, the Enquirer bears a

three-part burden to demonstrate that it is entitled to the requested writ. Roberts v. Winkler,

176 Ohio App.3d 685, 2008-Ohio-2843, ¶ 11 (1st Dist.). Therefore, to be entitled to such a

writ, the Enquirer must establish that: (1) Judge Oda is about to exercise his judicial power,

(2) the exercise of that power is clearly unauthorized by law, and (3) denial of the writ will

cause injury for which there is no adequate remedy in the ordinary course of law. State ex

rel. Cincinnati Enquirer v. Bronson, 191 Ohio App.3d 160, 2010 Ohio 5315, ¶ 10 (12th Dist.).

                                   Freedom of the Press

       {¶ 11} It is well established that media outlets – whether newspaper, radio,

television, online, etc. – have a clear constitutional right to gather news. Branzburg v.

Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646 (1972) (news gathering is constitutionally

protected for "without some protection for seeking out the news, freedom of the press could

be eviscerated"). That right, however, is by no means absolute, State ex rel. Dayton

Newspapers, Inc. v. Phillips, 46 Ohio St. 2d 457, 533 (1976), and must be balanced with

the defendant's right to a fair trial. State ex rel. Vindicator Printing Co. v. Watkins, 66 Ohio

St.3d 129, 138 (1993).       This is because, although generally not a concern in the

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overwhelming majority of criminal cases, "[p]ervasive, unfair, and prejudicial media

coverage of a criminal trial can sometimes deprive a criminal defendant of this constitutional

right." State ex rel. Toledo Blade Co. v. Henry County Court of Common Pleas, 125 Ohio

St.3d 149, 2010-Ohio-1533, ¶ 23, citing Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct.

1507 (1966).

       {¶ 12} The order on courtroom decorum and pretrial publicity at issue in this case is

more commonly referred to as a "gag order." Gag orders, while admittedly a restriction on

access to news outlets, are considered a less restrictive alternative to restrictions imposed

directly on the media itself. Nebraska Press Assn. v. Stuart, 427 U.S. 539, 564, 96 S.Ct.

2791 (1976). Nevertheless, in cases where there are concerns regarding the defendant's

right to a fair trial, such as the case at bar, a gag order may issue only if specific findings

are made demonstrating that (1) there is a substantial probability that the defendant's right

to a fair trial will be prejudiced by publicity that the gag order would prevent, and (2)

reasonable alternatives cannot adequately protect the defendant's fair trial rights. State ex

rel. National Broadcasting Co. v. Court of Common Pleas, 52 Ohio St.3d 104, 108 (1990),

citing Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14, 106 S.Ct. 2735 (1986).

Reasonable alternatives include, but are not limited to, extensive voir dire, a continuance

of the criminal trial, a change of venue, detailed jury instructions, and/or sequestration of

the jury. State ex rel. Beacon Journal Publishing Co. v. Kainrad, 46 Ohio St.2d 349 (1976),

syllabus.

                                          Analysis

       {¶ 13} In this case, Judge Oda found there was "substantial probability" that a fair

trial could be compromised and potential jurors might be prejudiced if the parties were not

prohibited from further commenting on the case. Judge Oda also determined that "[s]uch

statements are a clear and present danger to the right of the State of Ohio, the Defendant

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and the public to a fair trial." However, besides the news articles referenced in Exhibit A,

we find the record devoid of any evidence to indicate the gag order at issue was necessary

in this case. In the absence of such evidence, to presume that there may be news coverage

that threatens the administration of justice, whether that be against the state or the

defendant, is nothing more than pure speculation. This is particularly true here when

considering Judge Oda himself believed the news coverage thus far had been "remarkably

fair" to all parties involved for it is well-established that "'pretrial publicity – even pervasive,

adverse publicity – does not inevitably lead to an unfair trial.'" State v. Coley, 93 Ohio St.3d

253, 258 (2001), quoting Nebraska Press Assn. v. Stuart, 427 U.S. at 554.

       {¶ 14} In so holding, we refer to the Enquirer's statements made at the hearing on

its objections to Judge Oda's interim order, wherein it stated:

               We have the representative articles, but that's it. We don't have
               any evidence that, for some reason those articles or this case
               or whatever other context or circumstances, would lead to the
               impossibility of finding twelve impartial jurors to put in that box.

Continuing, the Enquirer then stated:

               And, so that's how it has to go and then you have to look at, all
               right, if in fact, this publicity is so pervasive and so prejudicial,
               and so unfair that it's going to result in the inability of twelve
               citizens from the Warren County jury pool to render a fair verdict,
               and that's really what you have to find, and again, I don't think
               there's been any such finding here.

       {¶ 15} We agree with the Enquirer. It is evidence, not speculation, that must be

made part of the record to demonstrate that a gag order is necessary to ensure the

defendant will receive a fair trial. State ex rel. Chillicothe Gazette, Inc. v. Ross Cty. Court

of Common Pleas, 2 Ohio St.3d 24, 25 (1982). "We cannot assume or speculate our way

to these necessary findings; there must be some evidence in the record that speaks to the

possible publicity and its effect on the jury pool." State ex rel. Cincinnati Enquirer v. Sage,

142 Ohio St.3d 392, 2015-Ohio-974, ¶ 25. Again, no such evidence was presented in this

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case. Therefore, while we certainly understand Judge Oda's concerns, we agree with the

Enquirer when it states Judge Oda's "sweeping conclusion" that a gag order is necessary

in this case serves as nothing more than "an impermissible leap from his findings that the

case has garnered media attention."

       {¶ 16} Our holding is further supported by the fact that there is little evidence

indicating Judge Oda fully considered any less restrictive alternatives than the gag order at

issue, nor any evidence in the record to support Judge Oda's finding there was "no lesser

restrictive alternative" available in this case. Instead, the record indicates Judge Oda

considered only the fact that the gag order at issue did not exclude any media outlets from

public areas within courthouse and/or from "coming to court, watching the proceedings, and

talking about what they observed." Had the record contained sufficient evidence to prove

other less restrictive alternatives had been fully considered, coupled with supporting

evidence indicating no other less restrictive alternatives would suffice, the gag order at issue

may very well have withstood judicial scrutiny. That simply did not occur here. Therefore,

although we believe Judge Oda acted with his best intentions at heart, because gag orders

should only be considered as a last resort, we find the gag order at issue in this case cannot

stand and a writ of prohibition barring its enforcement is proper. Nothing about this decision,

however, should be considered an invitation for either the state or the defendant to try this

case in the court of public opinion as opposed to the court of law, nor does this court's

decision bar Judge Oda from revisiting this issue in the future if justice so requires.

                                         Conclusion

       {¶ 17} In light of the forgoing, after considering the arguments advanced by both

parties herein, the Enquirer's request for a writ of prohibition to prevent Judge Oda from

enforcing the order on courtroom decorum and pretrial publicity he issued on August 18,

2017 in the Richardson case is hereby granted.

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{¶ 18} Writ granted.


PIPER and M. POWELL, JJ., concur.




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