WAVERLY, Ohio — Even though a higher court has struck down parts of an archaic court order issued by the presiding Judge in the trial of George Wagner IV in Pike County, violations of the media — and the public — continue.
In an order issued last month, Pike County Court of Common Pleas Judge Randy Deering issued a ruling that denied a request by the Guardian, the Cincinnati Enquirer, CourtTV, Law and Crime TV, WCPO-TV, WKRC-TV, WXIX-TV, and WLWT-TV to allow the recording or audio streaming of witnesses in the trial of George Wagner IV. In addition, Deering ordered the media not to film certain exhibits that may be deemed “too sensitive.” The media groups hired premiere first amendment right attorney Jack Greiner to represent them and sought a higher court to intervene. In addition, several hundred people have voiced their opinion online about not being able to watch the proceedings.
Historically, courts across Ohio and the country have allowed witnesses to opt-out of having their faces shown on television or in photographs when on the witness stand, and while doing so, those courts have allowed an audio-only broadcast of the testimony, which does not show the face or identity of the witness but still allows the public a chance to hear the proceedings.
The higher court’s ruling
In a ruling issued Tuesday morning, the local appellant court issued a finding in favor of the media outlets, striking down some of the archaic rules set by the judge overseeing Ohio’s worst homicide trial. In a unanimous vote announced before 11 a.m., the justices of the Fourth District Court of Appeals ordered Deering to allow news media and the public to film exhibits in the trial. They also went on to address the openness of courtrooms in Ohio — and America.
Wagner IV is the first to go on trial after six years of investigations. His mother, Angela, and brother, Jake have copped plea deals to testify against him, claiming Wagner was an accomplice in the 2016 killings of eight members of the Rhoden Family; Wagner’s father, Billy, is also charged and has yet to go on trial. As for Jake and Angela, they are expected to testify later this month.
In their ruling on Tuesday, Judges Mike Hess, Jason Smith, and Kristy Wilkin said, “The right of the general public (and, by extension, the press) to attend criminal proceedings is a fundamental right guaranteed by the First Amendment to the United States Constitution. This right of access promotes both the fair administration of justice and the public’s confidence in the judicial system.’ The Ohio Supreme Court has observed ‘without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and ‘of the press could be eviscerated.’ Freedom of the press includes the right to ‘gather, write and publish the news’ including events occurring in open court.”
The justices went on to say, “….Judge Deering is prohibited from imposing restrictions on the recording of exhibits during open courtroom proceedings without affording all parties an opportunity to be heard, making the appropriate findings, and entering the decision on the record.”
The writ sought by the media outlets did not explicitly seek an order against Deering regarding the “opting out” of witnesses, however, the order from Tuesday touched on how an open court is important and outlined the way objections by the media should be handled moving forward.
“Should Judge Deering or the prosecutors wish to restrict the media’s recording access in the future, the trial court must hold a hearing and make findings on the record,” the writ says. It goes on to read, “When the right of access to courtroom proceedings is in question, the petitioner should be given an opportunity to be heard at a proceeding where he may voice his objections.”
According to the Ohio State Bar Association (OSBA), “In practical terms, that means that a reporter who is present when such a request is made [to close the court proceedings] should promptly, and politely stand up and object.”
The objection on Friday
On Friday, the first witness to opt out since the writ was granted was Wagner’s grandmother, Rita Newcomb. She is also charged in connection with the massacre after investigators said she lied and mislead them about child custody documents, which was the motive for the killing. As a result of Newcomb’s opting out, the Guardian’s editor-in-chief, Derek Myers, followed the writ’s order and the OSBA guidelines, along with the Code of Ethics from the Society of Professional Journalists, and politely stood up, introduced himself to the Judge while the room was waiting for the witness to be brought in, and stated his objection to the banning of video.
The issue all stems around a rule known as “Rule 12” issued by the Ohio Supreme Court to lower courts, which says, “The judge assigned to the trial or hearing shall permit the broadcasting or recording by electronic means and the taking of photographs in court proceedings that are open to the public as provided by Ohio law.” The word “shall” is not optional. However, further down in the rule, it reads that “The judge shall inform victims and witnesses of their right to object to being filmed, videotaped, recorded, or photographed” and in a commentary portion of the rule, it reads that those who opt-out shall not be recorded. However, the commentary was written in 1997 and since then, the Supreme Court of Ohio — which writes the very rule itself — has said the rule is not absolute.
In a case brought by the Columbus Dispatch against a court in 2007, the Supreme Court ruled that witnesses who opt out are not automatically banned from being recorded; that case is known as “State ex rel. Dispatch Printing Co. v. Geer.”
“[The rule] does not automatically ban recording or photographing witnesses; rather, ‘all parties affected must have the opportunity to respond to the possibility of any restriction, and any finding must be based upon evidence in the record,” the 2007 ruling reads.
When Myers voiced his objection on Friday to the media restrictions of Newcomb’s testimony, the Judge had him removed from the courtroom and the trial continued until the jury was dismissed for the weekend. Albeit, with no audio or video of Newcomb.
Below is a statement from Myers, which he issued on social media:
On Friday, September 14, upon the advice of legal counsel and after a court order from Ohio’s Fourth District Court of Appeals affirming the media’s right to object to illegal, archaic rules imposed by a Pike County Court of Common Pleas Judge in the trial of George Wagner IV, I was forcibly removed from the courtroom for rightfully and respectfully objecting the limitation of media access. My objection was to the Judge’s continued blatant violation and misinterpretation of the Supreme Court’s rules and established case law regarding journalism being able to document, film, and record court proceedings.
In addition, the doors to the courtroom have been “locked” by armed deputies and state officers who refuse to allow the media — or the general public — to enter the courtroom unless the court is in recess, despite court personnel, family members, and advocates freely coming-and-going.
I followed the Code of Ethics of the Society of Professional Journalists (SPJ) and steps outlined by the Ohio State Bar Association by respectfully objecting; I remained in compliance with professional standards, decorum, ethics, and guidance at all times.
The media pool’s legal counsel, Jack Greiner, who is a fierce advocate for the first amendment, media rights, and courtroom access is working on the next steps on how this situation proceeds.
The restrictions imposed by Judge Randy Deering in this case are illegal, archaic, and a violation of the Constitutional rights afforded by Ohio and the United States, not to mention in direct derelict and contempt of the Writ of Prohibition the Fourth District issued on Tuesday in favor of the media and the public.
Full transparency is needed, especially in death penalty cases. The public should know how the state intends to kill one of its own, especially someone who is accused of taking the lives of eight people in a case that has been billed the most expensive and worst homicide in Ohio’s history.
As we say in the news business: “we’ll keep you posted on any new developments,” and thank you for the support from those who believe in a free press and open judiciary.
Judge Deering should be held accountable for violating the higher courts ruling.