Supreme Court of Ohio
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, ex rel. Case No. 2011-0132 THE VINDICATOR PRINTING CO., et al.,
Relators, (Original Action in Prohibition and Mandamus) vs.
THE HONORABLE WILLIAM H. WOLFF, JR., et al.,
Respondents.
MOTION OF RELATORS THE VINDICATOR PRINTING CO. AND WFMJ TELEVISION, INC. FOR LEAVE TO FILE AN AMENDED COMPLAINT, INSTANTER
(EXHIBITS G - O TO AMENDED COMPLAINT)
Marion H. Little, Jr. (0042679) Carley J. Ingram (0020084) Christopher J. Hogan (0079829) Assistant Prosecuting Attorney Zeiger, Tigges & Little LLP Montgomery County Prosecutor's Office 3500 Huntington Center P.O. Box 972 41 South High Street 301 West Third Street Columbus, Ohio 43215 Dayton, Ohio 45422
Counsel for Relators The Vindicator Counsel for Respondent Judge William H. Wolff, Printing Co. and WFMJ Television, Inc. Jr.
Martin G. Weinberg (Pro Hac Vice) Ralph E. Cascarilla (0013526) Law Office of Martin G. Weinberg, P.C. Darrell A. Clay (0067598) 20 Park Plaza, Suite 1000 Walter & Haverfield LLP Boston, MA 02116 The Tower at Erieview 1301 East Ninth Street, Suite 3500 Counsel for Intervening Respondent Cleveland, OH 44114 Anthony M. Cafaro, Sr. Counsel for Intervening Respondent The Cafaro Co.
(continued on next page) tEp 14- ioi$ CLERK OF COURT SUPREME COURT OF OHIO J. Alan Johnson (Pro Hac Vice) John F. McCaffrey (0039486) Cynthia Reed Eddy (Pro Hac Vice) Anthony R. Petruzzi (0069102) Johnson & Eddy McLaughlin & McCaffrey, LLP 1720 Gulf Tower Eaton Center, Suite 1350 707 Grant Street 1111 Superior Avenue Pittsburgh, PA 15219 Cleveland, OH 44114-2500
Counsel for Intervening Respondent Counsel for Intervening Respondents Ohio Flora Cafaro Valley Mall Company and Marion Plaza, Inc.
Lucy A. Dalglish (Minn. Bar #(257400) - The Reporters Committee for Freedom of the Press 1101 Wilson Blvd., Ste. 1100 Arlington, VA 22209-2211
Counsel of Record for Amicus Curiae (Pro hac vice application pending) Respectfully submitted,
Marion H. Little, Jr. (0042679) Christopher J. Hogan (0079829) ZEIGER, TIGGES & LITTLE LLP 3500 Huntington Center 41 South High Street Columbus, Ohio 43215 (614) 365-9900 (Fax)(614)365-7900 littleglitohio.com [email protected]
Attorneys for The Vindicator Printing Co. and WFMJ Television, Inc. CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing has been served, via regular
United States mail, postage prepaid, on September' ^ 2011, upon the following:
Ralph E. Cascarilla, Esq. Carley J. Ingram, Esq. Darrell A. Clay, Esq. Assistant Prosecuting Attorney WALTER & HAVERFIELD, LLP Montgomery County Prosecutor's Office The Tower at Erieview P.O. Box 972 1301 East Ninth Street, Suite 3500 301 West Third Street Cleveland, OH 44114 Dayton, Ohio 45422
Attolneys for Intervenor, the Cafaro Attomeys for Judge William H. Wolfe, Company Respondent
Martin G. Weinberg, Esq. John F. McCaffrey, Esq. Law Office of Martin G. Weinberg, P.C. Anthony R. Petruzzi, Esq. 20 Park Plaza, Suite 1000 McLAUGHLIN & McCAFFREY, LLP Boston, MA 02116 Eaton Center, Suite 1350 1111 Superior Avenue Attorneys for Intervenor, Anthony M. Cafaro, Cleveland, OH 44114-2500 Sr. Attorneys for Intervenor, Ohio Valley Mall Company and Marion Plaza, Inc.
Lucy A. Dalglish, Esq. J. Alan Johnson, Esq. The Reporters Committee for Freedom of the Cynthia Reed Eddy, Esq. Press JOHNSON & EDDYI720 Gulf Tower 1101 Wilson Blvd., Ste. 1100 707 Grant Street Arlington, VA 22209-2211 Pittsburgh, PA 15219
Counsel of Record for Amicus Curiae Attorneys for Intervenor, Flora Cafaro (Pro hac vice application pending)
924-001:303534
2 ZEIGER, TIGGES & LITTLE Lt.t' ATTORNEYS AT LAW 1"0tEPHONE. let4i 3654900 FACSIMICE„ 4614% 385-7900 8500 HUN7tN6TON CE^NTER WRiTERB O G'f NUMB
41 SCUTH H46}i 5;7aCF.3' (6t4)36$-4113 GOL.UMBL'S. 4HIO 43215
November 15, 20
d Delivery and Facsimile
The Honorable William H. Wc+iff, Jr. Common Pleas Judge, Sitting By Assignment Courtroorn 9 Mahoning, County Court House 120 Market Street Youngstown, OH 44503
1-tonorable William H Wolff Jr. Montgomery County Common Pleas Court 411V Perry Street # 515 Dayton, OH 45402-1431
Mr. Anthony Vivo Mahoning County Clerk of Courts Mahoning County Court House 120 Market Street Youngstown, OH 44503
Re: Tiie Youn-astown Vindieator Records Jteouest
Dear Judge Wolff and Mr. Viva:
We represent the'Youngstown Vindicator and WFMJ-TV. Pursuant to Section 149.43 of the Ohio Revised Code, we request an opportunity to first inspect; then designate for,copying; all (a) filings made; (b) orders issued or made, irrespective of whether jaurnalized; and/or (c) documents submitted to the Court in S tate of Ohio v. Yavorcik, et al.; Case No. 2010 CR 00800 H, Mahoning County Common Pleas ( oW ^ tilti J.).
As the Ohio Supreme Court has made clear, any records or documents (a) filed with tite clerk's office; or (b) received by and utilized by the Court as part of its decision making process, irrespective of whether joumalized, are public records, and must be made available for inspection upon request during regular business hours. See,L,&, State ex rel. WBNS TV. Inc. v. Dues, 101 Ohio St. 3d 406, 411 (2004); State ex rel Mothers Against Drunk Drivers v. {`iosser, 20 E3hio St. 3d 30, 33-34 (1985). ZEIGER, TIGGES & LITTLE LLP November 15, 2010 Page 2
As a result, consistent with 5ectian 149.43, please make these records promptly available for inspection. If any documents are withbA; we respectfully request that they be identified. We appreciate your attention to this matter.
Please do not hesitate to call mj(wi,f^ 4^ questions.
924-90)203895 ZEIGER., TIGGES & LITTLE LLP
ATTORNEYS AT LAW a66-9900 TEL=_RHONE_P6:.1) ulRITERS OIRECT NUM6ER; 3500 FAC61MI6E (614) 965^7600 HUNT[NGTOTJ CEN7ER 41 SOUTH HIGH STREET (614)3654113.
COLUMBUS, OH1O 43215
Novembeer 17, 2010
V ia Hand DeGverv, Email and 1Faasimile
Tlie Honorable William H. Wolff, Jr. Common Pleas Judge, Sitting By Assignment Courtroom 9 Maboning County Court House 120 Market Street Youngstown, OH 44503
Hbnorable William H. Wolff, Jr. Montgomery County Contmon Pleas Court 41 N Perry Street # 515 Dayton, OR 45 402-1 43 1
Mr. Anthony Vivo Mahoning County Clerk of Courts Mahvning County Court House 1.20 Market Street Youngstown, Oli 44503
Re: The Younestown.Vindicator Public Records Reauest
Dear Judge Wolff and Mr. Vivo:
We represent the Youngstow>ln Vindicator and WFMJ-TV. Pursuant to Seetion 149.43 of the Ohio Revised Code, we request an opportunity to first inspect, then designate for copying, all (a) filings made; (b) orders issued or made, irrespective of whether joumalized; and/or (c) documents submitted to the Court in State of Ohio v. Anthonv M. Cafaro. Jr., et a1., Case No. 2010 CR 00800 and subsets A -1:, Mahoning County. Common Pleas Court (Wolff, J.). We had previously made a public records request in Case No. 2010 CR 00800(H).
As the Ohio Supreme Court has made clear, any records or documents (a) filed with the clerk's ofJflce; or (b) received by and utilized by the Court as part of its decision making process, irrespective of whether journa(ized, are public records, and must be made available for inspeetion upon.request during regular business hours. See, g.g., State ex rel. WBNS TV Inc. v. Dues, 101 Ohio St. 3d 406, 411 (2004); State ex ret iylotlrers Aaainst Drunk Drivers v. Gosser, 20 Ohio St. 3d 30, 33-34 (1985). ZEIGER, TI{'rGEB & LITTLE LLP November 17; 2010 Page 2
As a result, consistent with Section 149.43, please make these records promptly available for inspection. If any documents are withheld, we,,Tspectfutly request that they be identified. We appreciate your attention to this matter. 11
Please do not hesitate to call me with any^lpest(ons.
Very t^lAyou
924-00l:203345v2 11J17)2010 10:21 AM FROM: ZTL LLP ZTL TO: 913307402105 PAGS: 002 OF 003
GI;IGEFI TIi?CiES & tiTTI,F i:r.V
ATTbRNEYS AT tA4V ...... - ^. ^. . . . W417ER50I.R£C: NUNAl2...... : ^...... ^. ^. FA£SIMIlE.01E1569-75tio :...... 35D0 flVi9T1N0I014 C$NTEfl. . .,,.:. .:: .:: ...... :: 41 SOUTH NIGN STREET . . . . . , ...... _ . . . , . . _ _ ^. f61413@5-4Ii:J: . ,. . . , , ...... ,...... ,.. . ._...... :...... ^...... ,...,,.. GOSUM9U5, -0N1C5A3$i6
November. 17, 2014
. : ^. ^. . Vi$ F8081l1tile
Ms. Kat}n McNabb We sh Chief Deputy Anthony Vi4o Mahoning C6unty Clerk of Courts IVI.Ahonirtg Connty ^.'^otuthoUse'. 120 Market Street Yuungstown, OH 44563
Re::: The Y'onn2stown G_indicator Pn6lic Records Re€luesi
Aear Ms. Welsh:
Thank you i'or your letter of Noventber 16; 20i0. As you know;: we haave mado similar pub[iC records recjuesis with respect to Case No. 2010 CR 008:00 and siabsets A- I: We assume that the approachciutirned in your letter of N9wernber 16, 2010 will be followed as to thoseas well
VJe noticed: the: tiling af:the folisiwing documents on I4ovesnber:5,:241fl, and:Novernber 1:6, 2010:
I. Bill of 1?articulais: for ]ohn. Zachariah filed Uniler Seal by _. Pla#^stiff (filed 1775 j10 in Case No_ 201:4 CR Qti800(^)?;
L Meiriorandum of i:aw in 5upport of oint Ivlotion of #1.nthony eafaro: Sr;;_'Ihe: ea£aro Co;, Ohio Valay Mall, hdarion:Plaz,t Inc.: and Fl®:ra Cafaro to Disnaiss Iridictmen# Filed Urtder Seal (filed I}(16%10 in Case No. 2010 CR 00800^>and.
.. 3. Jotnt Motion pf Anthony Cafaro: Sr.; The Cafaro:Ca:, f?hio:: : Valey Mall; Matioci Piaaa In.c: aitd FlomCafaro to Dismiss Indictment Filed UMer Seal (Fled I llkfil10 in (tase No. 20I O:CR 40800).: 11/17/2010 10;21 AM FROM; ZTL LLE ZTL 70: 913307402105 PACE:003 0F 003
ZT':1CaER, TICiOES & .I.xTTA.F. LLP Ms. Kathi McNabb Welsh November 17, 2010 Page.2.
"We are not able to access these documents and thus we ask that you pleaseprovide us a copy for inspection or, if it is more eonvenient for you, simply have a copy ma& and sent to the undersigned. We will obviously pay you for all copying expenses. My assistant, Terri `7:'hompson, can provide you a.Federal Express numbA if that is helpful.
Thank you for your anticipated coqperaNo^iq this matter.
424-OQ1:205779 ZEIGER, TIGGES & LITTLE LLF
ATTORNEYS AT LAW TiLEPHI?NE:I4$.14) 386•990ff WfiiTFP'S C1I9ECY NA 9 FACBIMILE,tE141966•7800 8500 HUNTINGTON CENTEH dt SOU7H HiGFt ETREET (614):165-+113
Ctli.UNtBUS. OHIO 43215
November 22,2010
Via Hand I?elivery. Email and Facsimile
The Honorable William H. Wolff, Jr. Common Pleas Judge, Sitting By Assignment C:ourtroom 9 .N'iahonirtg County Court House 120 Market Street Youngstown, OH 44503
Honorable William H. Wolff. Jr. Montgomery County Common Ple 41 N Perrj Street t# 515 Dayton, Ol-T 45402-1431
Mr. Anthony Vivo Mahoning County Clerk of Courts Mahoning County Court House 120 Market Street Yisungstown, OH 44503 Re: TheYoungetown Vindicator Public Records Request
Dear Judge Wolff and Mr. Vivo:
We representthe Youngstown Vindicator and WFMJ-TV. Pursuant to Section 149.43 of the Ohio Revised Code, we request an opportunity to first inspect, then designate for copying, the following document filed on November 1 S. 2010, in Case No. 2010 CR 00800 0:
Motion to Join Motion and Memorandum of Law in Support of Motion to Temporarily Seal All Bills of Particulars and Notices of intent to Introduce Rule 404(B) Evidence Until After Trial Filed by Defendant CJnder Seal.
As the Ohio Supreme Court has made clear, any records or documents (a) filed with the. clerk's office; or (b) received by and utilized by the Court as part of its decision making process, irrespeetive of wbether ,pournalized, are public records, and must be made available for inspection upon request during regular business hours. See, eg State ex rel. WBNS TV lnc. v.
EXIIIBIT ZEIGER, TIGGES & LITTLE i.nP November 22,2010 Page 2
Dues,. 101 Ohio St. 3d 406; 41.1 (2004), State ex rel Mothers Against Drunk Drivers v. Gosser, 20 Ohio St. 3d 30, 33-34 ( I985),
As a result, consistent with Section 149.43, p1e se maKe these records promptly available for inspection, If any documents are withheld, we 14pectfully request that they be identified. We appreciate your attention to this matter.
Please do not hesitate to oall me
924-001205240 STATE OF OHIO ) IN THE COURT OF COMMON PLEAS y ss. COUNTY OF MAHONING ) CASS NO. 2010 CR $OOA-I
STATE OF OHIO
Plaintiff -vs-
ANTHONY M. CAFA,RO, JR. ) TRANSCRIPT OF PROCEEDINGS THE CAFARO COMPANY (A) } OHIO VALLEY rrALi. CO. (B) THE MARIC7N PLAZA, INC. (C) } JOHN A. MCNALLY (D) } JOHN Z2EAF2'DC)N (E) MICHP,EL V. SCIORTINO (F) JOHN ZACH&11.2IAH (C:) A MAI2TIN YAVORCIK (H) FI.O'ktA CA.F7ll20 (I)
Defendants
BE IT REMEMSERED that at the hearing of the above-entitled cause, in the Court of Common Pleas,
Mahoning County, Ohio, beginning on the 6th day of
December, 2010, and continuing thereafter, as hereinafter noted, before the Honorable William. R.
Wolff, Jr., the above appearances having been made, the following proceedings were had:
EXHIBIT OFFICIAL SHORTHAND REPORTERS MANONING COUhITY YOUNGSTOWN, OHIO Atty. Marion H. Little On behalf of the Vindicator and WF'MJ
Atty. Martin G. Weinberg Atty. George A. Stamboulidis On behalf of Defendant Anthony M. Cafaro
Atty. Ralph E. Cascarilla On behalf of Defendant the Cafaro Company
Atty. John F. McCaf£rey On behai.f of Defendants Ohio Valley Mall and Marion Plaza, Inc.
_ -__. ------ro - y OrYi^behalf of Defendant John A. McNally
Atty. Louis M. DeFabio On behalf of Defendant Joh.n Reardon
Atty. J'otxn. B. Juhasz On behalf of Defendant Michael V. Sciortino
Atty. Robert E. Du££rixi Atty. J. Gerald Ingram On behalf of Defendant Martin Yavorcik
Atty. J. Alan Johnson Atty. Cynthia Eddy On behalf of Defendant Flora Cafaro
OFFICIAL SH®itTHAND REPORTERS MAH©1UING COUNTY YOUNGSTQWN, OHIO 3
DIRECT/A4ARTIN
the Defencia.nts' called
tTIN,
who, being first duly sworn testifa.ed
as follows:
7 a TFiE COURT; You may proceed.
MR. McCAET'&tEY: Thank you, Your Honor.
DIE3EOT EXAMINATION
BY MR. MaCAE'kI2EY: Sir, would you please state your name?
F3ugh Martin. Q Mr. Martin, you are being called as a witness
in this proceeding because you are knowledgeable about
economics of the media; is that correct?
A Yes. I will get into your qualifications a little
bit in a moment, but I wanted to preview for the court
what it is that you are going to be presenting
testimony on today. Were you requested to evaluate the
Vindicator's market share or readership for local news
in Mahoning County?
OFFICIAL SHORTHAND REPORTERS MAHaNING COUNTY YOUNGSTOWN, OHIO DIRECTjMAR'1'IN
A Yes, I was.
Q Did you do that?
A Yes, I did.
4 Q - Were you also asked to examine WFMJ-TV's
5 market share or viewer share for local news in the
6 Mahoning County area?
7 A Yes, I was. Did you do that?
Yes.
Q Were you also asked to examine the Vindicator and WFMJ-TV's coverage concerning the Mahoning County
ove of the JFS Agency to the Oakhill building, as well
as the investigation and indictment of the defendants
charged in the State of Ohio versus Anthony M. Cafaro,
Sr., et al?
Yes.
And did you do that?
Yes.
Q Mr. Martin, if you could, please identify for the court where it is that you are currently employed
and what position you hold. A I work at Ohio University at the E.W. Scripps
School of Journalism. I am an associate professor and
OFFICIAL SHORTHAND REPORTERS MAHONINC COUNTY YOUNGSTOWN, OHIO IRECT/MARTII3
1 I am the assistant director for undergraduate studies.
2 Q How long have you held that position?
3 A I have been employed as a professor at the
4 school for about a year and a half, and I took the
5 director's job this summer.
6 Q What subject matter do you teach?
7 A I teach in the area of media management and
8 economics and research methods. 9 Q Have you held other academic positions before
10 arriving at Ohio University?
11 A Yes. I taught at the University of Georgia
12 for nine years.
13 Q What did you teach there?
14 A I taught -- on the undergraduate level I
15 taught reporting and editing courses, and at the
16 graduate level I taught media economics and research
17 methods. 18 Q And for how many years have you been in the
19 teaching profession?
20 A Probably more than 15.
21 Q Have you held positions of employment outside
22 of the academic area? 23 A Yes. Prior to becoming in academia, I worked
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO IIIRECT/MARTTN
1 at the Tampa Tribune in Tampa, Florida. It's a daily
2 newspaper.
Q How long did you work there?
A I worked there for twelve years.
Q What positions did you hold at the Tampa
Tribune? A For nine years I was a reporter and for the
last three years I was an editor.
Have you -- do you belong to any professi.onai
organizations?
A Yes, I do.
What are they?
A I belong to the American Association for
Public Opinion Research, and I belong to the
Association for Education in Journalism in Mass
Communication. Have you -- do you serve on any Editorial
Boards? A Yes, I do. I currently serve on the
Editorial Board of the International Journal on Media
Management. Q Have you presented any publications or
presentations on the subject of the economics of the
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY Y®UNGSTbWN, OHIO 7 DIRECT/MARTIN
media?
2 A Yes, I have.
3 (WfiEREUPCN, Defendant's Exhibit No. 1
4 was marked for identa.fica.tion. )
5 MR. MeCAFFREY: And if I could approach
6 the witness, Your Honor?
7 THE Ca[7RT: Yes. Q Mr. Martin, I have handed you what's been
marked for identification as Defendant's Exhibit 1.
It's a multipage document purporting to represent your
curriculum vitae; is that correct?
A Th.at's correct.
Q That's a current curriculum vitae?
Yes, it is. Q It sets forth some of the information we have already talked about concerning your academic
employment as well as your employment with the Tampa
Tribune?
A Yes.
Q And, also, the various organizations and
presentations and Editorial Boards that you belong to?
A Yes, it does. Mr. Martin, what is the economics of the news
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 1 organization? 2 A Well, economics studies -- basically just
3 studies the allocation of resources, how we organize
4 and allocate resources and other economic activities,
5 and media economics applies that to understanding how
6 that's done by media firms, 7 Q Can you expi.ain for the court briefly what is
the economics of medias news organization?
A Yes. The economics of news are very similar
10 to the economics of most media firms. You produce
11 content, in this case news, that's designed to attract
12 an audience, and then you sell advertisements access to
13 that audience. 14 Q So it"s important to determine who your
audience is for purposes of identifying what news you
are going to distribute to them?
A That's correct. Q Did you examine the newspaper market in
Mahoning County?
A Yes, I did. Q All right. What data did you review, and
what was the approach that you took, Mr. Martin?
I will take that from you.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNCSTOWN, OHIO 9 DIRECT/MARTIN
A Thank you. I looked at reports that are
published by the Audit Bureau of Circulations,
Q What is the Audit Bureau of Circulations?
A The Audit Bureau of Circulations is the
newspaper industry's auditing arm created to audit
independently circulation reports so that they are
given credibility. What did you determine when you examined that
I report? A Basically I looked at circulation for all
newspapers in Mahoning County, and I determined that
the Youngstown Vindicator has a virtual monopoly in the
county.
Q Is Mahoning County a designated market within
the Audit Bureau of the circulation reports?
A Yes. It's actually part of a designated
market, so it's designated by the federal government.
It's part of what they call the metropolitan
statistical area. And that is also used by the Audit
Bureau. Q And what is the significance of being referred to as a designated market? A The significance of that is that there is
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 10
AIRECT/MARTIN
some kind of economic and social cohesion in that
market. Q We will get to the Audit Bureau of
Circulation report for the Mahoning County area in a
moment, but I want to define soine terms, if I could.
6 Were you able to determine the market share or
7 readership for the Vindicator newspaper in comparison
8 with other newspapers in this Youngstowrr area market?
A Yes, I was. All right. And what did you find?
Well, I found that in terms of its daily
circulation that the Vindicator has something on the
order of 38,000 copies that are circulating every day.
And in terms of its Sunday circulation, I believe that
it has something on the order of 40 some odd thousand.
Q Are there other newspapers other than the
Vindicator in this designated market area?
A Yes, there are.
Q How many -- approximately how many other
newspapers? A There are approximately 22 other newspapers,
but most of them do not circulate in Mahoning County.
Q These would.be national newspapers?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YbUNGSTQWN, OHIO 11
RECT/MARTIN
A That includes three national newspapers but
the rest of them are all either local, or regional
dailies,
Q Newspapers out of Pennsylvania?
5 A Yes.
6 Q Newspapers in Ohio?
A Yes.
Q All right. Were you able to in your analysis
of the newspaper readership market for Mahor.ing County
focus just on each newspaper within Mahoning County
itself?
A Yes, I was.
13 Q And did you focus on the circulation or
14 distribution of the newspaper as reported for each of
the newspapers in Mahoning County?
16 A Yes, I did.
17 Q All right. And what is the importance of the
18 circulation? What does that number represent?
19 A Well, circulation represents the number of
20 printed copies that the newspaper distributes each day.
21 It's actually an average over a period of time.
22. And is there a term referred to in your
23 industry call penetration market?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 1 A Yes. That's a standard measure of a
2 newspaper's market share. 3 Q All right. And what does that penetration
4 number represent? That -represents the number of households in
6 the county that can be reached ar potentially reached
7 by the newspaper circulation.
B Q Those would be occupied houses?
9 A That's correct. 10 Q And then there is another concept that I
11 believe you use in your industry called the readership
12 or market share of the newspaper?
13 A That is correct.
14 Q What as the readership?
15 A Well, that actually refers to the number of
16 people who are actually reading the newspaper.
17 Q All right. And how is -- would the
readership number be different from the circulation or
19 penetration number? 20 A Yes. The industry standard says that the
21 readership number is different. 22 Q Is it greater or less?
23 A It's larger because as a general rule more
OFFICIAL SHORTHAND REPORTERS MAHONfNG COUNTY YOUNGSTOWN, OHIO 13 DIRECT/MARTIN
than one person reads each copy of the newspaper.
2 Q Okay. Is there a concept called pass-along
3 rate? A Yes. What is a pass-along rate?
A That is essentially an estimate of the number of people reading each copy of the newspaper.
Q And is there an industry standard for a
pass-along rate for a newspaper? A Yes. There are national statistics that are
used. Q And what are those statistics? What is a
pass-along rate? A Well, essentially the most recent survey that
was done uses a number of about three.
MR. LITTLE: Objection, hearsay.
THE COURT: I am going to overrule that.
You said about three?
A Yes. So for every one newspaper at least three
people have read or reviewed that newspaper?
A Yes. In the most recent national survey that
23 was done that`s the number that they came up with.
OFFiCiAL 5HORTHAND REPORTERS MAHONING COUNTY YOUNCSTOWN, OHIO 14
DIRECT/MARTIN
THE COURT: Who did you say came up with
this number?
THE WITNESS: It's a firm called
4 Scarborough Research. I•t's a media research
firm.
6 In determining the readership for a
particular newspaper is demographic information
important?
A Yes, it is. And what sort of information do you look --
what sort of demographic information is i.mportant for
determining readership? 13 A well, age, income, and education are all
14 predictors of newspaper readership. 1s Why is age a predictor of readership of a 16 ewspaper?
17 A Well, for a couple of reasons. As people get 18 older they tend to develop closer ties to the community
19 and they, therefore, have a reason to read a newspaper.
20 The second reason is media use is a habit. As people
21 get older they tend to acquire that habit.
22 Q Were you able to look at demographic
23 information specific to Mahoning County in your -- the
OFFICIAL. SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 15
DIRECT/MARTIN
1 research that you did on this particular --
2 A Yes. I used the U.S. Census data. 3 Q Were you able to determine the population of
persons 18 years or older living in Mahoning County?
A Yes. It's about 187,000.
Ngt. LITTLE: Your Honor, excuse me.
7 Your Honor, let me object, move to strike the
witness' testimony. We are hearing a lot of
testimony about the witness' interpretation
of documents not before the court. That runs
directly afoul of Evidence Rule 705. The
evidence to support an expert's testimony
must be part of the record. We are not in
federal court. We are in state court and
noncompliance of the rule.
'PHE COURT: Did you want to be heard on
that? MR. McCAFE'I2EY: I do, Your Honor. Your
Honor, my understanding of the evidence rules
is the witness -- the expert is permitted to
review documents that are not necessarily
admitted into evidence. Some of the records
we are going to admit into evidence. Some of
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 16
DIRECT/MARTIN
this is znformation that he has reviewed in
preparation for this hearing over the
internet. He talked about specific
demographic information. I will get into
what source he specifically consulted in
6 order to get this information.
MR. LITTLE: Your Honor, I misspoke.
It's 703. The facts or data in a particular
case upon which an expert bases an opinion or
inference may be those perceived by an expert
or admitted into evidence at the hearing.
Perceived by the expert would be, for
example, a testifying physician who rendered
care in the emergency room. It does not
allow the witness to surf the Net, if you
will, cobble together some statistics and
appear before Your Honor and offer an
opinion.
THE COURT: You are saying he can't rely
on the census?
MFt. LITTLE: He cannot rely upon any
information that is not made part of the
record before Your Honor.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 17
DIRECT/MARTIN
MR. MeCAEB'REY: Your Honor, that's not
2 the way I read 703. His opinion or
inferences may be those perceived by the
expert or admitted into the evidence at the
hearing. It used to be under the old Ohio
Evidence Rule 703 that every document had to
be admitted in court, but Ohio has conformed
their evidence rule to near that of the
federal court. So not every document has to
be admitted in that an expert relies on.
THE COLTRT: Mr. Little, I am going to 12 permit this. It seems to me if he is relying
on census statistics he is relying on
something reasonably reliable.
MR. LITTLE: My point, Your Honor, was
that in my earlier objection on hearsay was
that he was also relying on materials other
than the census report.
THE COURT: I understand that.
MR. LITTLE: I think that also falls within 703 and, quite frankly, impairs the
entire testimony.
THE COURT: What did you say?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 18 DIk'2ECT/MP.,RTIN
B1R. I,:LTTLE: Quite frankly impairs the
entire testimony because there has not been
that type of foundation made for that type of
4 data. Thank you.
THE COTJRT: Ruling stands. Go ahead.
6 BY N2. MaC.A.E'E't2EY :
7 Q Mr. Martin, I was asking you how it was that
8 you were able to determine what the population was for
9 18-year olds and older in Mahoning County. What did
10 you consult?
11 A I consulted the U.S. Census web site.
12 When did you consult that?
Most recently last night.
Do you know when that data was compiled for
that web site? A The most recent data available is for 2006 to
2008.
Q All right. Now, specifically with respect to
the Vindicator -- THE COURT: Excuse me. You gave a
figure of 187,000. Is that the population
over 18?
THE TdITNE88: That's correct.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 19
IRECT/MARTIN
1 THE COURT: Okay. 2 {WIiEREUPON, Defenclaant's Exhibit No. 2
was marked for identification.)
4 MR. McCAFH"ktEY: Your Honor, may I
5 approach the witnesses?
THE GOC7RT: You may.
BY MR. McCAP'FREY: Q Mr. Martin, I have handed you what has been
marked foridentification as Defendant's Exhibit 2.
Can you please identify that document?
A Yes. This is the audit report for the
Vindicator. And is this a document that you were able
obtain?
A Yes. I am a member of the Bureau.
Q How did you obtain this document?
A I'm a member of the Bureau. I logged on to the web site and I downloaded it.
This would be the most recent data that the
Audit Bureau of Circulation puts out for the
Vindicator? A This is the most recent data available that
shows the Vindicator circulation in this county.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 20
DIRECT/MARTIN
Okay. And in reviewing this ABC report, what
2 were you able to determine with respect to the
3 Vindicator's circulation?
4 A. Well, the numbers that I gave you earlier
5 came from this report in terms of daily and Sunday
6 circulation within Mahoning County.
7 Q And did you prepare -- did you also look at 8 the ABC reports for other newspapers that had
9 circulation numbers in Mahoning County?
10 A Yes. I looked at the ABC report for all 21
11 other newspapers, and I identified, I believe it would
12 have been, either seven or eight other newspapers that
13 are either local or regional, and I identified one
14 natiorial newspaper that reported circulation numbers in
this county. Did you prepare a spread sheet that set forth
those numbers as well as the Vindicator circulation?
A Yes, I did.
A7R. McCA.E'EREY: May I approach, Your
Fionor?
THE Cl'>L?RTc Yes.
(BdHERLUPON, Lsefen.da.n,t' s Exhibit No. 3
was marked for identification.)
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO Mr. Martin, handing you what's been marked
for identification as Defendant's Exhibit 3; is this
the document that you prepared looking at the ABC
reports for several of the newspapers who have
6 circulation within Mahoning County?
7 A. Ye s , 8 Q And with respect did you limit your analysis
9 to the geographic area of Mahoning County only?
1Q A Yes, I did. 11 What was the daily circulation on average for 12
Within Mahoning County?
Within Mahoning County, yes.
And with respect to the Sunday circulation?
It's 47,983.
Using those numbers were you then able to
determine what the penetration rate was for the
Yes. Those are actually listed in the
And did you prepare a chart identifying
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 22
DIRECT/MARTIN
penetration rate for both daily and Sunday circulation
for the Vindicator?
A Yes, I did. 4 Q Did you also prepare a summary of the
5 penetration reports for other newspapers that
6 distribute newspapers within Mahoning County?
A Yes, I di.d.
(WHEREUPON, Defenciant's Exhibit No. 4
was marked for identification.)
MR. McCAFE'REY: May I approach, Your
Honor?
THE COL7RT: You may. y^ Mr. Martin, handing you what's been marked as
Defendant's Exhibit 4; what is this document or this
report? A. This is the second part of the analysis that
I prepared. 4 All right. And, again, penetration rate I determines what? What is the importance of that
number? A Well, penetration rate tells you how many
households in the county. It's the percentage of
occupied households in the county that the newspaper
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 23
either circulates to or potentially circulates to.
2 Q And what was the penetration rate for daily
3 distribution of the Vindicator in Mahoning County?
4 What percentage of households?
5 A it's 40.1.
6 Q With respect to the Sunday circulation? 7 St's 49.6.
8 So for Sunday at least half of the households
9 hin Mahoning County are receiving the Vindicator
10 newspaper?
A On average that's correct.
And how does that compare to the penetration
rates of the -- some of the other newspapers that you
looked. at? A Well, none of the other local or regional
dailies even has a 1 percent penetration rate in their
daily circulation. So their circulation penetration is
negligible in this county.
Martin, do you have an opinion, to a
reasonable degree of professional certainty, as to the
readership of the Vindicator in Mahoning County?
A Yes, I do. 23 What is that opinion?
OFF1CIAl. SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 24
DIRECT/MARTIN
1 A well, my opinion is that there are a minimum
2 of 38,000 some odd daily readers -- and give me a
3 second here -- and 47,000 some odd Sunday readers, and
4 it's highly likely but as a conservative estimate we
can double both of those numbers assuming that each
newspaper is read by two people. Q And you are referring to the pass along rate?
A. That's correct.
Q Which you earlier testified was the national
average was three, but you are conservatively
estimating that as two?
A That's correct.
MR. ; I'ST'LE: Let m.e object to his
testimony as pass along. There has been no
evidentiary basis to submit to this court,
submit that type of statistical analysis.
THE COURT; Okay. That figure, this
gentleman says, comes from the Scarborough
Research, which is newspaper research. It
seems 'to me he is relying on a tool that's
used in the industry.
MR. LITTLE: What I understood his
testimony was is that he was in receipt or
OFFICIAL SHORTHAND REPORTERS MAHON.ING COUNTY YOUNGSTOWN, OHIO had reviewed by some means a study that had
2 11 been conducted by a group, and that was the
3 basis for the testimony that occurred here.
4 THE COURT: I understand that.
MR. LITTLE: That particular study is 6 neither before this court nor is it a
7 government record that would have the
8 reliability that the court referred to as it
9 relates to the census.
10 THE COLyRT: That may be so, but this is
11 11 a person who is schooled and his expertise in newspaper. I think if he sees fit to rely
on it, the court can accept that.
MR. LITTLE: I would just like to have a
standing objection in that regard, Your
Honor.
TkTE COURT: You may. it will be noted.
MR. LITTLE: Thank you.
19 BYbFR. McCFiE'MY :
20 Q Professor Martin, with respect to the 21 demographic information we looked at earlier -- I know
22 you looked at the -- for 18-year olds and older in
23 Mahoning County it was approximately 187,000. Were you
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTQWN, OHIO 26
DIRECT/MARTIN
1 able to look at the age demographic within Mahonir;g
2 County based on the census information you reviewed?
3 A Yes, I was.
4 Q What did you find?
5 A Well, the median age in Mahoning County is
6 about 41 years old. That's a little higher than the national median, which is, I think, about 36 years old.
^„7 Is that demographic, does that in any way
influence your opinion as to the readership of the
vindicator in Mahoning County?
A It would be an indioator, obviously, that
it's -- you have more people here who are likely to
read the newspaper. 9 Professor Martin, I am going to ask you a othetical question. I want you to assume the
ollowing facts: I live in Mahoning County. I am an
adult. I am interested in reading about what's
happening in my community. Where am I most like.ly to
look for local news source?
The Youngstown Vindicator.
Are there any alternatives for reading about
what is happening in my community?
No, there aren't.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO Why is that?
211 A Because there are no other newspapers that have significant ci.rcul.ation in the county available to
4 you. 5 Q All right. Mr. Martin, I would like to now
6 focus on the examination that you conducted of the
7 television market within the Youngstown area. I would
8 like you to explain what data you reviewed and w.hat
9 approach _vou took. 20 ^^ A Well, the first thing I did was to see li this is a market, a television market, and I determiried
12 11 that it is. Youngstown is considered to be a market by
13 the Nielsen Company which produces ratings that measure
14 television station audiences. 15 Q When you say the market is, how does Nielsen
16 define this Mahoning County market? 17 A Basically Nielsen defines a market as beinq
18 the area that is reached by the television stations
19 within the city. It's named as the market reached by
20 their broadcast signal and where the majority of their
21 11 audience is found. 22 Q Were you able to determine the number of
23 sources there were for local TV news in the Youngstown
OFFICIAL SHORTHANt7 REPORTERS MAHONING COUNTY YOUNGSTOWN, t3Hl© 28
DIRZCT/MARTIN
1 area?
2 A Yes. 3 Q And what did you find?
e A There are three television stations in
Youngstown.
Q Is WFMJ one of those three? A Yes, it is. And those are three stations that would cover
the local news?
A Yes.
(WHEREUPON, Defendant' s Er>hibit No. 5
was marked for identification.)
13 MR. Lt2aCAFE'REY: Your Honor, may I
14 approach the witness?
15 THE COURT: Yes.
16 Q Mr. Martin, handing you what's been marked 17 for identification as Defendant's Exhibit 5; this purports to be a TV Competitive Analysis for the time
19 period of July 10 of 2010; is that correct?
20 A That's correct.
21 Q And were you able to -- did you review this
22 as part of your analysis of the viewership for local
23 news in the Youngstown area?
OFFiCIAL SHORTHAND REPORTERS MAHOhlING COUNTY YOUNGSTOWN, OH#fl 29
DIRECT/MARTIN
1 A. Yes, I did. 2 Q And this document identifies the three local
television stations that you have referred to?
4 A That's correct. 5 Did you specifically examine in comparison of
6 the market share for local news with respect to these
7 three TV stations?
A That's what this document shows.
9 TTiE COURT: Can I just interrupt for a
10 second? You had identified WFMJ as one of
11 the stations. Am I correct that the other
12 two are WKBN and WYTV?
1.3 THE WITNESS: That's correct. And then
14 I believe WKBN also has an affiliation
with -- WKBN is the CBS station.
16 THE COURT: When you talk about three i7 stations, these are the ones?
18 THE WITNESS: That's correct.
19 THE COURT: All right.
20 BY McC1aFE'FiBY : 21 Were you alale to make any determinations with 22 respect to the market share for viewership with respect
23 to WFMJ versus the other two local stations?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 30
DIRECT{MARTIN
1 A Yes, I was. This is a very limited document.
2 This refers to the ratings for a single day. But it
3 shows on that day that WFMJ had the largest share of
4 viewers watching the news.
5 ^,,7 And how --- when you say larger share, how 6 much larger in comparison with the other two?
7 A Well, the share of viewers that it has
8 watching the news is essentially twice as much as its
9 nearest competitor. 10 Q Also as part of your analysis of WFMJ's
11 viewership, did you go on to WFMJ's web site?
12 A Yes, I did. 13 What did you see on that web site?
14 WFMJ tells its advertisers that it has the
15 most watched newscast at 6:30 and at 11:00 p.m.
16 Did they give any sort of percentages or
17 nurnbers with respect to the claim of most watched?
18 They don't give the rating stats. They did
19 talk about the number of households. I don't remember
20 the details right now.
21 I am going to ask you another hypothetical.
22 want to you assume the following facts: I live in
23 ahoning County, I am an adult. I am interested iri
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 31 DIRECT/MARTIN
1 learning about what is happening in my community, and I
2 want to do this by watching local news on television.
Where am I most likely to go for local news based on
the information you have reviewed?
A WF'MJ.
Q And are there alternative sources for local
television news?
A Yes, there are.
Q Are these sources less significant or less of
an alternative news source than WE'MJ?
A Well, from what I can determine from the ed data that I have seen, they are less
significant in the sense that they have smaller
audiences. I want to now direct your attention to an
examinati on of the internet news market .
A Okay. Did you perform an analysis of the available
sources of local news on the internet?
A Yes, I did. Q What data did you review and what approach
did you take? A Well, the first thing that I did was to look
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YQUNGSTC?Y+INY EtHfO 32
DIRECT jhFARTIN
at the Audit Bureau because the Audit Bureau does
provide internet statistics for some newspapers. But
it does not do that for the Vindicator. So then I went
and looked at the Vindicator web site to see what it
was reporting. Q Did you look at any data put out by the FCC?
A Oh, yes, I did.
Q All right. What, and you went on the FCC has
a web site? A That's correct.
Q And that is a tool that you use in your media
economics teachings? A It's a standard tool that's used by lots of
people. Q What specifically were you looking for on the
FCC's -- we are talking about the federal --
A The Federal Communications Commission. Right.
A Which, among other things, regulates broadcast television, and it also regulates internet.
Q What specifically were you looking for on the
2^c FCC web site? 23 A I was looking for information about the
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YQUNGSTOWN, OHIO l access that people have to the internet at home in
2 Mahoning County. Specifically I was looking for data
3 that would show me how many households in the county
4 have broadband internet access.
5 Q What did you find?
6 A. I found that between 40 and 60 percerit of the
7 households in Mahoning County have broadband or high
8 speed internet access.
9 MR. LITTLE: Your Honor, I am going to
10 make an objection. If I could havea il standing objection to this witness relying
on --
RT: You may. LITTLE: Thank you.
THE COURT: Again, let me just say that
.T think these web sites, he has testified
that this is a standard tool. He uses these
sources of information in his work. I have
no reason, really, to doubt the accuracy of
these records, even if they are technically
hearsay, and you will have an opportunity to
cross examine. MR. LITTLE: Your Honor, I would suggest
OFFICIAL SHORTHAND REPORTERS MAHONBNC COUNTY YOUNGSTOWN, OHIO 34
if we were trying this case and the
prosecution put a witness on of this nature,
you would hear the same objections from
4 defense counsel. Unless that evidence is
5 before the court the witness could not offer
6 any testimony. So we make the same type of
7 objection. Thank you.
THE COURT: Your objection is noted.
ahead.
LbR. MaCAFFREY: Thank you.
BY MR. McCAFFki'EY:
12 Professor, were you able to determine what
sources of internet access there were to local news in
Mahoning County?
A Ye s . Q All right. What did you determine and how
did you do that?
A Well, on the Vindicator lists some other web
sites that it clearly considers to be its competitors
for providing news in this area.
Q All right. So the Vindicator has its own web
site?
A Yes, it has its own web site.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YQUNGSTOWN, OHIO 35
1 That's Vindy.com?
2 That's right.
3 And are there any other newspapers that have
4 web site in Mahoning County? 5 Yes, there are. All right. And what did you learn about the
viewership or readership for those particular web sites
in comparison to the others?
Well, all of -the other newspapers are
nondaily newspapers with, I guess, with the possible
exception of the student newspaper at Youngstown State.
And so I didn't examirie those web sites to the extent
that I determined what their readership is or is not on
line.
Q And did the other -- did the three local
television stations also have internet web sites?
They do.
Focusing on the viewership or readership for
the Vindicator's web site, were vou able to look in or
look for numbers as to that readership or viewership?
That's the primary number that I relied on,
the number published by the Vindicator on its own web
site.
OFFICIAL SHORTHAN[? REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 36 nxREcT/MARTxN
g What was that number that the Vindicator
2 published? 3 R. The Vindicator said that it has about 300,000
4 what it calls unique readers each month.
5 (WHEREUPON, 13efendant's Exhibit No. 6
6 was marked for identification.) 7 MR. MoCA.E'E'12EYe May I approach, Your
Honor?
THE COTJRT : Ye s . Q Mr. Martin, handing you what's been marked
for identification as Defendant's Exhibit 6; this is
four separatepages which purport to be screen shots of
what? A No, actually T just printed out a copy of the
web page. Right, okay. So this is the information on
the Vindicator's web site? A That's correct. This was printed out as of when?
December 4.
Q And specifically what claims are the Vindicator making with respect to viewership of its web
site?
OFFICtAI.SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO Well, as I said, it says that they reach more than 300,000 unique monthly readers and receive over
3.5 miliion page views per month., and they make a reference to Mahoning and the Shenango Valley as being the market they are referring to.
And you viewed the Vindy.com web site; haven't you?
A Yes. 9 Is that essentially an internet version of its newspaper? A It looks '_ike a very typical newspaper web site. Q Were you able to look at numbers concerning the web traffic for Vindy.com? A Yes. They published what they call an audience comparison, which they are comparing their numbers with the number of unique visitors or presumablv that's synonymous but unique readers to other web sites.
(WHERET7P(71V, Defendant' s Exhibit No. 7
was marked for identification.)
MFt. MeCAE`E?ZY: May I approach, Your
Honor?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 38
DIRECT/MART'IN
THE COLJftT : Ye s .
1+^2. McCAFFREY: Your Honor, I only have
one copy of this. This was produced pursuant
to our subpoena this morning by the
Vindicator. May I stand with him, please?
THE COLTRT : You may.
MR. MeCAFFRE'Y: Your Honor, for the
record, I am going to be showing the witness
what's been marked. Defendant's Exhibit 7.
It's bait stamp number VIN 1 through 24, and
these were documents that were produced by-
the Vindicator's counsel in response to one
13 of the subpoenas that we had :;.ssued for the
14 purposes of this hearing.
15 THE COURT : All ri ght .
16 BY MR. McCAFFREY: 17 Q Mr. Martin, what is Defendant's Exhibit 7, as
18 best you are able to tell? 19 A These are statistics about the number of
20 times that pages are being viewed on their web site.
21 Q And I know that you just saw this document
22 for the first time just before you took the stand, but
23 were you able to draw any conclusions from the number
OPFICIAL 5Fi®itTF{AND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 39
DIRECT/MARTIN
1 of hits on the Vindicator's web site with respect to
2 local news coverage?
A Yes. This shows that the - what is
essentially the front page or the main web page seems
to have averaged a little bit more than a million views
a month for the last several months. And then there is
a section called news local, and that seems to have
averaged maybe 50,000 page views for the iast several
months.
Q And were you able to, in your review of the
internet market for local news in Mahoning County, were
you able to determine whether or not there are other
I competitors with the Vindy's web site?
A Well, the Vindicator indicates that there are
other competitors.
Q You are referring to Exhibit 6?
A Yes.
Q Do they identify those competitors?
A Yes, they do.
Q Who are they?
THE CC1T7R'.[`: And where is that?
MR. McCAFF'REY : That' s on the third
page, Your Honor, of Exhibit 6.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 40
IRECT/MARTIN
THE COURT: All right. Okay. I see it
2 Unique visitors.
3 THE WITNESS: It's -- one of these is
4 the web site for the Warren Tribune, and one
5 is the web site for WT'MJ, and one is the web
6 site for WKBN and WYTV. 7 Can you summarize what this chart shows on
the audience comparison?
A It shows that the Vindicator has an audience
that is at least twice the size of all of its
compet-itors. I am going to as]c you a hypothetical
question, Professor, and I. ask you to assume the
lowing facts: I live in Mahoning Count.y. I am
interested in what is happening in my community. I
want to do this by accessing local news on the
internet. Where am I most likely to go for my local
news based on the information I have given you?
A To the Vindy.com.
Q Are there other alternative sources for local
news on the internet?
A Yes, there are.
is one of these also WFMJ?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO Yes, it is.
Are you aware of whether or not there is a
commonality of ownership between the Vindicator
newspaper and WFMJ?
Yes, I am. How did you become aware of that commonali
of ownership? A By reviewing the federal licensinc, records
the television station.
Q Again, this would be available on the FCC
12 11 A That's correct. 13 Q And when did you review that information?
14 A Well, most recently I reviewed it last night.
15 Q And what did you find when looking at the
16 ownership of the Vindicator and WFMJ? 17 A I found that in the most recent filing, which
18 was made last summer, it shows that the Vindicator and
19 WFMJ are owned by the same privately held company.
20 Q You reviewed the Vindicator's web site;
21 correct?
22 A Correct. 23 Q You also -- did you review WFMJ-TV's web
OFF(CIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 42 DIRECT/MARTIN
1 site?
2 A Yes. 3 Q Did you see any evidence of the sharing of
4 local news between the Vindicator and WFMJ?
5 A Yes.
6 Professor, I want to now direct your 7 attention to an examination that you were asked to
8 conduct of the Vindicator's news coverage and to a
9 lesser extent WFMJ's news coverage of the subject
10 matter dealing with Job and Family Services move to the
11 Oakhill building and then the subsequent investigation
12 and indictment of those charged in the State of Ohio
13 versus Cafaro, et al.
14 A Okay. 15 Did you review newspaper articles on that
16 subject?
17 Yes, I did.
18 And approximately how many newspaper
19 articles?
20 A Dozens.
21 Where did you obtain these articles?
22 From you.
23 All right. These were photocopies of a - -i
OFFICIAL SHUlZTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 43
. DzRECT/MA.RTx21
series of articles that were presented to you in a
2 black binder? 3 A That's correct.
4 Q Did you also go on the internet and look for
5 articles? 6 A I did some spot checking on the internet and
7 also using a lexisnexis, which is a standard database
8 of newspaper stories to make sure that the binder that
9 you gave me was complete.
10 Q Okay. And for what period of time was it
that you reviewed articles? A Well, most of it was focused on essentially
the period of time from about 2006 or 2007 to the
present. Q These would be news stories as well as
editorial coverage by the newspaper?
A Yes. Q Were you able to make any judgments or
observations with respect to the frequency of coverage
on this subject matter?
A There was a lot. Q And what do you mean by -- what else did you
determine from the frequency of coverage?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 44
Well, it was clearly considered to be a major
2 news story by the newspaper. They devoted -- they
3 covered it frequently.
4 Q Was there some noticeable difference in the
5 frequency of the coverage in the Vindicator over the
6 course of the time that you looked at from 2006 to the
7 present? 8 A Yes. I think it waxed and waned, and it
9 became more intense as the dispute over moving the
10 Welfare office moved from being a sort of a routine
county government kind of dispute story and started to
12 11 become a story about potential ethics violations and
13 then a story about potential corruption.
14 Q And when it became a story about criminal
15 investigation and charges, what did you notice
16 specifically about the frequency of the coverage?
17 A Well, I would say the frequency and the
18 intensity of the coverage increased.
19 Q Now, as a former journalist and current
20 professor of journalism, did you reach any observations
21 as to the fairness of the Vindicator and WFMJ's
22 coverage on this subject matter?
23 A. The Vindicator was -- the Vindicator's
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 45
DIRECT/MARTIN
coverage was very tough on the people who were being
investigated. What do you mean by "tough"? Can you give me 4 some examples?
5 A By tough I mean that it was sharply drawn.
6 It seemed to give prominence to allegations against
7 those people. There was a lot less attention being
8 paid to whatever the people being investigated might
9 have to say or what explanation they might offer for
10 these events. 11 Did you see certain sensatiorial phrases or
12 terms being used in headlines?
13 A Well, I saw some headlines - I don't know
14 that I would call them sensational -- but they were
15 certainly a little over the top.
16 Q Do you remember specifically some of these?
17 A I think there was a reference in one of the
18 stories to "The ©akhill Seven."
19 (WHEREUPON, Defendant's Exhibit No. B
20 was marked for identification.)
21 MR. McCAFFREY: If I may approach, Your
22 Honor?
23 THE COTJFtfi : Yes.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 46
IRECT/MARTIN
Q All right. Professor Martin, drawing your
2 attention to the document that's been identified as
Defendant's Exhibit $; do you have that?
4 A Yes.
5 Is this one of the articles that you have
6 looked at in your review and also questioned the
fairness of the coverage?
A Yes. This is an opinion colum:n.. Yes. By Mr. de Souza; is that correct?
Yes, that's correct.
Q And the headline reads "Oakhill Gate Reinforces Valley's Imaa,e of Corruption?"
A Yes.
Q This was an article July 30, 2010?
A That's right. Q This was -- do you recall th.e date that the
indictment was returned in this case?
A Isn't this right around the date?
Q Yeah. It's the day after.
A It's the day after?
(WHEREUPON, Defendant's Exhibit No. 9
was marked for identification.) Q With respect to drawing your attention
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 47
FIRECT/MAR`PIN
1 to Exhibit 9.
2 A Yes. 3 Q This is an article written on Sunday, August
4 2010, the Vindicator?
5 Yes, this is very tough.
6 When you say tough, what do you mean?
7 A Well, this tries to put in context its
investigation, and it starts with an atteinpt by the
Mafia tc murder, I believe, the prosecutor elect in
1996.
9 And this again is two or three days after the
indictment was issued in this case? i'e s . (WHERE^.'C^'PON, Defei2dant ` s Exhibit No. 10
was marked for identification.) And with respect to Exhibit 10, this was a --
that is a Vindicator article issued on Septem'ber 1
following the release of a bill of particulars that was
fiied concerning two of the defendants in this case; is
that correct?
A Yes.
Q All right. What was it about this article hat made you question the fairness of the report?
OFFICIA{. SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTt)WN, OHIO 48
I?IRZcT/MAR2'IN
There is a sentence in this article, if I can
2 find it. 3 Q this also the article that has the banner 4 "The Oakhill Seven" on Page 2?
5 A Qh, it's on Page 2? That's right.
6 Q All right.
7 A oh, here is what caught my eye when I read this. There are a couple of paragraphs. This is in
the one, two, three, four, fifth column over.
Q On the first page?
A. On the first page.
Q _ A1l right. ------< - A It says, "The bill of particulars at the very
end drops a hint of what is to come in cases against
others." And then it's a quote, "This is not the first
time Anthony Cafaro or other members of the enterprise
have made clandestine payments, and the state will seek
to offer and introduce other acts evidence, the special
prosecutors wrote at the end of the bill without
offering further explanation." Is that what you questioned "without any
further explanation?"
A Yes. LE OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 49
DSftECT/MARTItd
1 ^ What specifically made you question the
2 fairness of that particular report?
3 A We1l, it seems to me as a journalist that if
4 you see an allegation kind of dangled out in front of
5 you like that and there isn't any supporting
6 information being added to it that you ought to
7 approach that allegation with a great deal of caution.
a Now, did you see any evidence in the review 9 of the articles of news stories tracking the editorial
10 opinion of the newspaper?
13. A Yes. 12 All right. And do you have any examples of
13 that? 14 Well, I mean, generally speaking, the paper
15 has made no secret that it supports -- edi'aorially it
16 supported the move initially of the Welfare office.
17 And so if you read the coverage -- again, this goes
18 back to rny earlier point, that the people who opposed
19 moving the Welfare office, it seems to me, are quite
20 often their point of view is not being given the same
21 kind of prominence or the same kind of attention. Then 22 when it moves into the criminal phase or at the stage
23 when it's an investigation before any charges are
OFFlCIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 50
D altECT/MARTZ#T
brought, it seems to me that it's incumbent on the
2 newspaper at that point to make a very strong effort to
3 give people a chance to respond when allegations are
4 being made against them. And I think there was less of
5 that than perhaps there should have been. 6 Q In your review of the Vindicator articles,
7 specifically during the time period involved in the
investigation and then subsequent indictment, did you
see any evidence of any standard journalistic
statements that the Vindicator used either in its news
report or its editorials that educated the reader as to
12 a presumption of innocence or that an indictment is
merel.y an accusation? A i think that the day or the day after the
indictments were brought there were some quotes from
some of the lawyers that essentially said my client is
innocent. But other than that, I don't think that that
idea has sort of been present in the way that it might
be in the coverage.
(WHEREUPflN, Defendant's Exhibit No. 11
was marked for identification.)
MR. Nl,cCAFFREY : May I approach, Your
Honor?
OFFIClAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 51 DIRECT/MARTIN
TIiL COURT: Yes.
Y MaCAFFREY: Professor Martin, you also examined some of
5 THE COURT: Have you -- are you going to
6 mark this one or is it marked?
7 MR. MaCAFE'REY: It's marked. I'm sorry,
8 Your Honor.
TSE COU.R7C: What's the number?
MR. MoCAFFHE'Y: Exhibit 11.
THE COURT: Eleven?
MR. McCAE"E'12EY: Eleven. Professor Martin, I asked you -- you also
reviewed WFMJ's web site concerning its reporting on
the subject matter that we're talking about.
A Yes. All right. And did you find an example of
questioning the fairness of that reporting by that news
agency? Well, I found this story.
I am handing you what's been marked as
Defendant's Exhibit 11; what is that document?
A. This is a coverage after the indictment, and
OFFICIAL SN4RTHAND REpORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 52
he headline is "Anthony Cafaro, Sr. vows innocence."
2 And what in particular about this report from
3 WFMJ caused you to c3uestion the fairness of the
4 coverage?
A Vde1l, it was the first sentence. It reads as follows, "He is at the center of a criminal enterprise
allegedly includes bribing public officials to
protect his own private interest." Why did you take issue with that particular
10 This states as a fact that the defendant is
12 at the center of a criminal enterprise_
MR. MeC.A.FE'12EY: May I have one moment,
Your Honor?
THE CC3URT : Ye s .
M'R. MeC:P,FFtiEY: Professor Martin, thank
you. I pass the witness, Your Honor.
THE CUt7RT. Cross?
MR. LITTLE: Yes, Your Honor. Thank
you.
THE COURT: Mr. Muhek, would you be
crossing as well?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 53
DTRECT/PS,ARTIN
MR. Id[JtiEFC: I would like to reserve that
right, Your Honor.
THE COURT: All right.
Mr. Little, it's your witness.
NlR. LITTLE: Thank you very much, Your
Honor. 7
OFFICIAL SNORTHAND REPORTERS MAHONING COUNTY YOUNCSTOWN, OHIO Niit. LITTLE: If I may inquire, Your
Honor?
THE COURT: You may. Sir, in reviewing your CV it was unclear to me, have you ever been tenured at any of the
institutions that you are teaching, that you have
taught at? A Yes. I was tenured at the University of
Georgia, and I am tenured at'Ohio University:
g And at the University of Georgia did you
achieve the position of professor?
A Associate professor.
Q I take it that the position of professor is
different from associate professor?
A It's considered to be a higher rank.
Q And, likewise, at Ohio University you
maintain the position of associate professor, and the
status of professor would be higher?
A Correct.
9 Now, in reviewing your CV it looks like the
bulk of your experience, particularly as to the matters
OFFICIAL SHORTHAND REpORTERS MAHONiMG COUNTY YOUNGSTOWN, OHIO 55
CROSS/MARTIN/LITTLE
1 you author, is simply media economics; correct?
2 A The bulk of my research is in media economics. 4 You have, for example, never served as a jury
5 consultant; have you?
6 A No.
7 And you understand that a jury consultant is
8 an expert that provides assistance sometimes to
9 attorneys in selecting a jury; correct?
10 A I don't know what a jury consultant does. Okay. Well, you have never had any
involvement in assisting counsel in selecting juries;
have you?
No. Q Okay. And for purposes of your testimony
today I take it that you did not, for example, conduct
any type of survey or polling; did you?
A No. Q And, Vou know, for example, in politics they
will often -- candidates will survey or conduct a poll
of potential voters; correct?
Yes. And, in fact, with respect to jurors more
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 56
GRpSS/MA.RTIN/LITTLE
1 sophisticated companies, as you are aware, will also
2 conduct statistical studies of a prospective jury pool
for purp©ses of preparing a case. Are you familiar
with that?
A No. Q Nevertheless, that's not something that you
did in this particular case?
No. Q Did you look to see how many citizens of this
county are actually eligible to serve in a jury pool?
A. No. Q Do you know whether it's 50,000, or 100,000,
or any sense or guess?
A Q Do you know what the requirements are for
someone to serve as a juror in this county?
A I don't know.
Q Fair enough. A Unless it's the same as it is in most places.
Q Okay. What is that? What is your
understanding? A Well, my understanding is that if you are
registered to vote, you can be called to serve as a
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO juror.
Q So one of the things you can look at in trying to assess the jury pool in this case is those
folks that have actually registered to vote; correct?
P. Ye s . Q Again, that's not something that you have done; correct?
A I'm sorry?
It's not something you have done here?
That's right.
You can't tell us what the demographics are,
or example, of the likely jurors in this case?
No.
Q And you can't tell the court to what extent
the likely jury pool in this case would have read any
of the articles that appeared in the Vindicator; can
you?
No.
or you, likewise, can't tell the court to
what extent any of the likely jurors in this case would
have seen any coverage from the news station regarding
this particular case; can you?
A. No.
OFFICIAL SHORTHAND REf>ORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 1 Q Now, in preparing for your testimony did you 2 have the opportuni-ty to meet with any of the media
3 consultants engaged by any one of the defendants?
4 A No. 5 Q Okay. And in conducting the examination you.
6 described for us, did you look at any of the publicity
7 volunteered by the defendants? For example, did you
B look at the press releases i ssued by the defendants? 9 A Okay. Did you look at what I call an
11 (^ infomercial that was produced in cablecast by the
12 11 defendants?
13 1E A I haven't seen that.
Are you aware of it?
I am aware of it.
Q Okay. So, and we will get to this in more
17 detail later. In terms of providing information to the
18 public, we obviously have information that is available
19 from the Vindicator which you, yourself, are aware that
20 the defendants, themselves, have voluntarily
21 interjected information into this market by the
22 issuances of press releases and also an infomercial;
23 correct?
(3FF(CtAL 5HORTF4AND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 59
CROSS/MARTIN/I,ITTLE
A I have seen press releases. I have been told
there was an infomercial. And the reason you do an infomerci.al is to
tell your side of the story, for example?
A I haven't seen the infomercial. 6 Q Okay. Well, when you -- because you want to
make sure you are doing your job right, as you have
testified to, when you found out there had been an
infomercial, why didn't you ask to look at it?
A I have asked about it.
Well, did you ask to look at it?
I haven't had time to see it.
Q Well, when were you engaged? Because you told us you spent a great deal of time reviewing your
materials in preparation of your testimony. When were
you first engaged by the defendants in preparation for
testifying today? A The first phone call I got was last
Wednesday. When was it that one or more of the
defendants advised you that there had been an
infomercial?
A I actually don't remember.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 60
CROSS/MARTIN/LITTLE
Okay. But you said you did ask for it?
2 Yes.
3 Did they just not give it to you?
4 A No. just one thing on a 1ist, a long
5 list, that I have not seen yet.
6. Okay. And this list that you describe as
7 ong, is this a list of things you would like to see?
Yes.
9 Is this a list that you gave the defense
counsel and said I would like to have the benefit of
this information for purposes of my testimony?
A Oh, I don't mean there is a physical list.
Well, let's put a firier point on it. Was there a specific request by you to the defendants for a
copy of the infomerc^.al?
A. Yes, I asked about it.
Q When you say you asked for it, did you say
let me see it?
No. I said I will look at it later.
Well, you are testifying today. Why do you
need to see it later?
A I don't know that it's really relevant to the
thing that I was focused on.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO So why did you ask for it?
Because I am trying to see everything that I
3 can possibly see as soon as I could. There was a time
4 constraint.
5 Q fl kay. Were you also aware of one or more of
6 the defendants' appearances on local radio to present
7 their story?
8 A I am not aware of that.
9 Q Okay. Did you -- when you said that you
10 wanted a copy of the infomercial, did you ask any of
11 the defendants or their counsel for specific copies of
12 the press releases that they have issued?
13 A Press releases were given to me.
14 Q Okay. So did you receive the press releases?
15 A (Witness nodded head in the affirmative.)
16 Q Okay. You have to verbalize your response
17 A Yes. 11 18 Q -- for the court reporter. Just so we are
19 clear, a press release is a written statement by one
20 person or erstity that sets forth a position, and then
21 is emailed or faxed out to the various media outlets?
22 That's what a press release is generally for.
23 Is that what you understood the press
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 62
CR4S8/MARTIY+I/LITTLE
releases were in this case; statements that had been 2 prepared by the defendants and then disseminated to the
3 various media outlets?
4 A Yes. Q And how many of those different press
releases did youreceive from the defendants?
A i did not count them. Well, were they 10, 15, 20? How many?
9 A I don't know. 10 Q Okay. Did you actually take the time to read
11 those, or did you run out of time in that respect, as
12 well? 13 A No, actually I have read some of them.
14 Q Okay. Did you read all of them?
15 A No. 16 Q Okay. So you got to read some of them. Now,
17 the reason a compariy or an individual issues a press
18 release is because they are hoping that someone in the
19 media is ultimately then going to report on the content
20 of the press release. Is that a fair statement?
21 A That's a fair statement.
22 Q So in this particular case you are aware that
23 the defendants that are sitting in this courtroom today
OFFICIAL. SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 63
C12AS S/MAR'S IN JLIT TLE
complaining about pretrial publicity have, in fact,
2 been issuing press releases hoping to generate rnedi.a attention regarding the positions they have taken;
right?
A Ye s . Q And, in fact, in the press releases that have
been issued by the defendants they have proclai.med
their innocence; have they not?
Yes. And they have stated in detail the reasons
that they believe support their innocence; correct?
P. I don`t know. I don't remember the details
right now.
Well -- I `m sorry? I don't remember the details right now.
Q Did you bring copies of those with you today?
A I have copies in my car of all the documents
I was given. Q Okay. So they are in your car. You didn't
bring them in the courtroom with you today?
A No. ¢ Okay. Now, is it fair to say that as to some
of the press releases that you read, they did, in fact,
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 1 contain details from the defendants as to the basis for
2 their claimed innocence; didn't they?
3 A Yes. Q And we are going to go in sort of backwards
pace, if we could. Still looking at those exhibits
6 that you were asked about earlier, do you have those
7 with you still? And I would like to first direct your
8 attention to Defendant's Exhibit 8, which was the --
9 TI3E COURT: Eight?
10 M. LITTLE: Eight. 11 Q -- which was the July 30, 2010 article that
12 appeared in the Vindicator. Do you have that?
13 A Yes. 14 Q Okay. And what this is is an opinion; is it
15 not? 16 A That's correct. 17 Q Okay. So for purposes of the paper we will
18 have what I call news reports, and then separately we
19 will have sometimes an opinion section? 20 A That"s correct. 11 21 0 And the article that you have placed
22 criticism at, in fact, is one that, as you read it, was
23 11 an opinion by the newspaper?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 65
GRO$B/MARTI87/LITTLE
That's right.
Q Okay. As opposed to a news story? That's correct.
Okay. And just so we are clear, wher, you
stand before His Honor today and say that the coverage 6 had been biased, the universal documents that you have
7 been referring to are the ones marked Defendant's
8 Exhibits 8 through 11; correct?
9 A These are examples.
10 Q Well, I assume these are the best examples;
11 aren't they? 12 A There were a lot of examples.
13 Q A lot of examples. Well, let me ask you this: During the time that you were working for the
Tampa newspaper, is it fair to say it was not uncommon
for the paper to receive criticism of its coverage in a
particular story? A It is not unusual for a newspaper to be
criticized for its coverage of a story.
Q Is that true? That's true. Okay. And it's also not unusual for a
newspaper to increase its coverage regarding the
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 66
CROSS/MARTIN/LITTLE
subject when the matter involves something relating to
2 public ethics; correct?
3 A Correct. 4 It's not unusual for a newspaper to increase
5 its coverage when there are criminal allegations filed
6 against one or more members of, excuse me, one or more
7 public ernployees?
8 A That's correct.
9 Q And it's also not unusual for a newspaper to i 0 have increased coverage when the subject of a criminal indictment involves public property; correct?
12 A That's correct. So the fact that the Vindicator had increased
coverage after the issuance of the indictment would be,
from your opinion, not an unusual event; correct?
A Correct.
It's also fair to say that under the Ohio
Revised Code, sir, that a journalist is allowed to
report the subject of an indictment with imrriunity;
correct? A I am not familiar with the Ohio law.
Well, you would agree with me that it is, in
fact, ordinary and reasonable in the industry for a
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 67
newspaper or other media outlet to report the contents
of an indictment?
Yes.
And it's also not unusual in the course of a
criminal prosecution for the defendant to limit its
emarks to something to the effect the allegations are
unfounded or without merit; correct? I think during criminal prosecutions that
people get lawyers and that determines what they are
going to say in public. 9 Well, when they get lawyers they tend to,
quote, lawyer up; don't they? They don't comment much?
A Well, you can't find that out uriless you call
the lawyer. Okay. And if you call the lawyer and the
awyer doesn't provide any comment, then you, as a
journalist, stop th.ere; don't you? A Well, if you call the lawyer and the lawyer
says that they don't want to comment, you usually
report that. And isn't it fair to say that as you reviewed
he various articles from the Vindicator, you saw that
the defense counsel either offered no comment on
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNCSTOWN, OHIO 68
CROSS/MARTIN/LITTLE
several occasions or elected to simply make a simple
2 statement that the clients were innocent?
3 A I think that I saw less -- what I was looking
4 at and what I wasn't seeing as much as I sort of expected to see, was I wasn't sort of seeing that on a
6 routine basis. 7 Q I'm sorry? A I wasn't seeing that on a routine basis that
they were saying, you know, we tried to talk to so and
so and they declined, et cetera. Q Now, one of the other things that when you
were a journalist that you did is for purposes of
preparing a story, you would attend or send reporters
to attend court proceedings; correct?
Yes.
That was part of the news gathering process?
Yes.
Q That was an ordinary part of the news gathering process?
A Yes. ^ The other thing you did when you were working
for the Tampa newspaper is that as part of the news 23 gathering process you would -- you, yourself, or.your
OFFICtAG. SHORTHAND REPORTERS MAMC}NING COUNTY YOUNGSTOWN, OHIO 69
CROS S/MART IN/ LY TTLE
reporters would review materials that were of public
2 record?
3 Yes.
4 That was an important part of the news
5 gathering process?
6 A Yes, it is. Q That is if there had been a position taken by
a government official, you would look to see what had
been filed as part of that public record; correct?
A Yes. You would, likewise, see what the response
was by the defendant in that public record?
13 A Yes. 14 And, in fact, during the time that you were
15 associated with the Tampa newspaper, you, yourself,
16 would have been involved in public records litigation
17 to ensure that your paper had access to records that
18 you viewed as important for the news gathering process?
19 A Yes, I was. 20 Okay. And let's be clear, the type of
21 records that you were seeking as part of this effort to
22 secure public records involved public corruption;
23 didn't it?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 70
cxoS$/MARTIN/LITmI,E
A There was a -- my direct involvement was
2 actually •in a case th.at had to do with trying to get
some records that were showing maps where a turnpike
4 was goi.n.g to be built.
5 That's right.
6 That was not a public corruption issue.
But as I read your CV, it appears that you
also used public records to gain access to information
for purposes of reporting on public corruption issues?
A I have used public records to gain access to
a lot of different kinds of information, including to
look into potential instances where public officials
13 weren't doing their -iobs correctly and there was some
14 reason to ask about that.
15 Q In fact, in terms of your position as a. 16 journalist, you would have always taken the position
17 that one of your principal roles was to educate or
18 inform the public as to matters involving potential
19 public corruption? 20 A That`s one of the reasons journalism exists.
21 Q That is one of the reasons that journalism
22 exists from your perspective is that the media service
23 is the surrogate for the public at large; correct?
OFFICIAL SHORTHAND REPORTERS MAHONING CQUN'T'Y YOUNGSTOWN, OHIO 71
CROSS/MARTIN/LITTI,E
Correct,
2 And in that surrogate role it's one of the
3 responsibilities of the media, in your opinion, to keep
4 a tab, if you will, on the activities of government
officials --
A Yes.
Q -- correct? And one of the other roles that
you, as a media, excuse me, as a;ournalist had, in
your opinion, was to ensure that there was integrity as
to the proceedings occurring before government offices
and including the courts; correct?
The journalist's role -- I don't agree with
you when you use words like "ensure integrity". We
can't do that. What we can do is report on the things
that we see going on. It was important from your standpoint that
the public have trust and confidence in the actions of
public officials?
A It's important from the journalist's point of
view that we hold the government accountable by
reporting on what it does. So in this case, for example, one of the
things that the media would want to make sure occurs is
OFFIGAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 72
CROSS/MARTIN/LITTLE
that both the prosecution and the defense have a fair
opportunity to present their respective cases; correct?
A I`m sorry. Could you repeat the question?
4 Q Well, the media wants to make sure, does it
5 not, that everyone is being treated in an appropriate
6 fashion as part of the governmental proceeding that the
7 media is covering? 8 A I think that's one.of its concerns. 9 Q Okay. And so one of the concerns is to make
10 sure that both defense counsel and the prosecutor have
11 a fair opportunity to present their respective cases?
12 A That's one way to look at it. 13 Q Okay. And, in fact, that is, in fact, one of
14 he admissions, is it not, of the media to ensure that 15 these proceedings are being conducted appropriately in
16 that surrogate role for the public? 17 A I think that the person in charge of the
18 proceeding is the judge. I don't think -- I am not
19 sure that I completely agree with your description. I 20 mean, the media's role is to come and report on what's
21 happening. 22 Q That's right. And to the extent observe
23 something irregular about the proceedings, to report on
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 73
CROSSJPdARTINJLITTLE
that?
2 A If it's newsworthy. 3 If someone wasn't receiving a fair trial,
that would be newsworthy; wouldn't it?
5 A Yes. 6 Q Okay. Let's talk a moment about some of the sources of information. And you have told us that
8 there are three TV stations that have their designated
9 marketing area in the Mahoning Valley.
10 A Uh-huh. Q You have to verbalize your response.
12 A Yes.
13 Q Okay. And just so the court is clear, we
14 hear phrases such as DMA. That's designated marketing area? 16 A It's a designated market area; that's right.
17 Q And the DMA, for example, doesn't necessarily
1$ confine itself to a particular geographical county; 19 does it?
20 A It's not confined to a single county.
21 Q So, for example, in the case of the TV
22 stations with the DMA in the Mahoning Valley, what is
23 the geographical scope of that DMA?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO ell, it includes some other counties.
2 Q And, in fact, it's four counties, one of 3H which is in Pennsylvania; right? A I haven't had a chance to review the
5 documents that we were just handed, so the answer is I
6 don't know. 7 g Please take an opportunity and feel free to
ook at any of the documents you were handed this
orning by defense counsel. (Complying.) I don't think I have that one.
Do you have it?
No. Okay. So your testimony is you do not know
what the counties are that comprise the DMA for, for
example, my client? A The answer is I do not know. Q Okay. You are familiar with cable companies
being a source of news; correct?
A Cari you explain? Well, let's break it down. You understand
that a'SV station, for exam.ple, has a broadcast signal;
right? A Yes.
OFF'IC1AL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 75
And the geographical limitation is determined
by a number of factors that impact on the strength of
that TV signal? 4
that could potentially hit four counties but not
7 necessarily go beyond that because of the limitations
of its signal? 9 That's true. 10 Okay. Now, do you know what the limitations nal are for my client? For wFMi, is that what vou are talking about?
that they give some information about the number of
households that the signal reaches, and then it says
that they are also available on 50 cable systems.
You would actually have to have a cable
ransmission consent agreement; wouldn`t you?
Yes.
Do you know what that is?
It's an agreement that allows the cable
company to retransmit your signal.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUhIGSTOWN, OHIO 76
Can you tell us what counties, if any, receive the cablecast of my client's signal pursuant to your retransmission consent agreement?
A No, I can' t . Q Isn't that something that you would want to
look at before you came to court today?
A Yes. Q Would you also want know what the signal
strength was of my client before you came to court
today?
Well, wouldn't you want to know whether or not the coverage being issued and generated by my
client and telecast by radio signal reaches any other
You have to remember the way that this works
is that the ratings that your client is using, or at
least the ratings that I have seen, are based on the DMA. That's where they get their audience numbers.
And that's the audience; right?
A Well, that's the audience as measured by the
ratings agency. Q But one of the questions the court is going
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 77
CROSS/MARTIN/LITTLE
to have is whether or not any coverage -- any coverage
being generated by my clients is actually being seen
outside of the DMA. And so my question is, can you
tell the court right now to what extent the coverage
for either our TV station or our newspaper is being
seen outside the DMA and to what extent?
A That was two different questions. I don't
know what the viewership for WLTIAJ outside its
designated market area is. C7kay. And so because you don`t know what
that is, you can't tell us what the penetration levels
are, and you can't tell us to what extent, if any, that
transmission would have any irripact on jurors in Pike
County, Ohio, Y.amilton County, Ohio, Montgomery County,
Ohio, any of the 87 other counties?
No. Okay. And, likewise, with respect to the
newspaper, the Vindicator, you can't tell us to what
extent its coverage has any impact on any of Ohio's
other 8"7 counties?
A Yes, I can. Q And what can you tell us in that regard?
A Well, you can look in the audit report and it I OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 78
CROSS/MARTIN/LITTLE
1 details county by county all the places that the
2 newspaper circulates. ^ Okay. We11, let's take a moment and look at
4 that audit report then. If you would look at
5 Defendant's Exhibit No. 2, please?
6 A (Complying.)
7 Q And let's walk the court through this, if we $ could. Starting at the first page, this is what, you 9 identified earlier as the ABC Audit Report for the
10 period ending December 31, 2009.
A That's right.
okay..^- And what we have on Item...... _,_.. Number 1 is the average page circulation numbers Sunday through
Saturday. A That's correct. Q Okay. Now, if we could turn to the second
page of that same exliibit?
A (Complying.) Q And what you focus on from a DMA standpoint
is zip codes; correct? A That's one of the things you can look at.
Q So.3s'rien we look at the second page, this, the
legend here, gives us the Youngstown corporate limits,
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 79
CROSS/MARTIN/LITTLE
which is the gray area on the center of the page, and
then you also see the various zip codes; correct?
A Correct. Q Okay. Now, the DMA for the Vindicator
5 actually captures how many different counties, sir?
6 A Well, let's take a look and see. 7 Q I think you are trying to make your way to
Page 5. I will let you find what you are looking for.
A Yes. It gives the breakout for counties in
Ohio and Pennsylvania. I think that's on Page 5. Q So if we look at Page 5 of Defendant's
Exhibit No. 2
A Uh-huh. ^ -- when we look at the numbers, is that
telling us that some of the circulation for the
Vindicator is actually in Pennsylvania?
A Oh, yes, it is.
Okay. And if we look at the top then it
identifies for us the seven counties that from this
report are receiving the Vindicator? A Yes, it does. All of that circulation is
negligible. Q So let's follow up on that. When you say
OFFtCiAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 80
CROSS/MARTIN/LITTLE
negligible, what do you mean? 2 A Well, I mean, if you look, for example, just
3 at a number in Perinsylvania, if you look at Beaver
4 County and you read this it says that there are 29
5 copies of the Sunday paper in Beaver County, 6 Pennsylvania. And so that's an example of what I mean
7 by negligible; that a lot of that circumstances is a
8 very small number.
9 Q Likewise, would you say the same thing for
10 Jefferson County, Ohio?
A I think you mean Columbiana.
Z£m sorry, I am starting with Jefferson.
A Yes. In Jefferson it says the Sunday
circulation is 186 copies.
Q So 186 copies for the entire county? That's what it's reporting.
What does it report for Portage County?
In Portage County we can see that it's
reporting projected 78 copies, and then for the daily,
if I am reading the right line, it's 60.
Q Sixty?
A Sixty. ^ Sixty newspapers for the entire county?
OFF6CIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 81
CRflSS/MARTIN/LTTTLE
1 A That's correct.
2 Q Okay. So Jefferson and.Stark, I think we
3 could probably agree there is very minor distribution,
4 excuse me, Portage. We would agree there is very minor
5 dYstribution of the Vindicator; correct?
6 A That's correct. 7 Q And, likewise, just to walk through for the
8 court, go ahead and explain what the numbers are for
9 St.ark County.
10 A Let's see. For Stark there are about 484
11 Sunday papers and 356 daily. -
12 That's also something that you would view as Q _ ._.....^...___,_ _._..._....__._:-^ ...._,.._. 13 very minor; correct?
14 A Yes. 15 Q And Trumbull County, what do the numbers look
16 like? 17 A Trumbull County has 11,378 paid, or actually
18 when they correct for it they said 9,090 on Sunday and
19 6,938 on weekdays. 20 Q Okay. And let's go ahead and Columbiana
21 there?
22 A Let's see, Columbiana has 5,429 Sunday and
23 2,359 weekdays.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 82
CROSS/MARTIN/LITTLE
Q And, finally, Ashtabula, please.
2 A It looks like about 119 on Sundays and they
are not reporting any weekday. We would report that you would view that as a
very minor amount of circulation by the Vindicator in
that county?
A Yes. Q Glcay. So for the court's benefit in terms of
the counties with circulation from the Vindicator,
we're talking basically Mahoning, Trumbull, and
Columbiana; correct?
A Those appear to be -- yes, that's right.
^ okay. And so for the other 85 counties in
the State of Ohio it would be very minor, if any,
coverage by, or, excuse me, received by the folks in those counties of Vindicator use?
That's correct. Okay. Now, we were talking a moment ago
about other sources of news, and we were talking, I
think, about cable companies. There is also what S
would call national cable companies that distribute
news into this community, such as, MSNBC; correct?
A I am sure that's the case.
OFFICIAL SHORTHAND REPORTERS MAHONIPlG COUNTY YOUNGSTOWN, OHIO 83
ROSS/MARTIN/LITTLE
Q Okay. So when you offered some testimony on
2 direct about where people go for their news --
A Yes. -- well, sometimes people go to more national
oriented sources for their news coverage; correct?
A That's correct. So if you have someone that fa:sls in the
demographic of being older and having interests in
matters of national defense, they are likely to go to
one of the national publications or programs as opposed
to the Vindicator? A That's correct. Q In fact, that's what you find with your
demographics for the older reader or viewer, they tend
to have an interest of matters of national
significance; do they not? A Actually, that may be the case, but they also
have an interest in matters of local significance.
Q Well, how many different cable companies
provide news into Mahoning County? A I do not know. I know that there are two
cable franchises in Youngstown. Q And those cable franchises, pursuant to
OFFICtAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO retransmission consent agreements, would provide an entire menu of news sources for the subscriber?
A. Correct, but most of them would not be local.
Q When I am talking about subscriber, I am talking about the individual who signs up for a cable
plan.
Yes, Q So the individual subscriber that signs up
for a cable plan can receive their local news via antenna but they are also receiving nationa]. news;
correct?
A Ye s . Sometimes they receive news about, for
example, Cleveland or even Columbus if those stations
are making their programming available in this county
pursuant to a retransmission consent agreement? If that's the case, that would be correct.
Okay. So in terms of accessing the news,
someone who has a cable subscription may have as many
as 20 or 30 different news programs to look at?
A They obviously would have whatever number of
programs the cable company offers. Okay. They also have in Mahoning County
OFFICCAL SHORTHAND REPORTERS MAHONINC COUNTY YOUNGSTOWN, OHIO 85
CROSS /MPaRTIN JT.ITTLE
satellite coverage that provides different news sources for them; isn't that right?
A Yes.
Q And that's a little bit like cable in the 5 sense with your satellite subscription you can pick up
6 news sources from a host of locations? 7 That's right. The other source for news in this particular
12 11 A Radio, yes, that's right. - - - ..-.^_..._ 13 11 Q And did you look to see how many different
14 radio stations provide news coverage in Mahoning
15 County? 16 A I didn't have time. 17 Q Well, just so we are clear, then, when you
18 talk about a monopoly, you are talking about a monopoly
19 in terms of a single type of news distribution?
20 A I think that's what I said. 21 Q Okay. That is, you may have 30 different
22 types of news distributions, and you say monopoly as to
23 1 of the 30; right?
OFF1CIAi. SHORTHAND REPORTERS MAHONth[G COUNTY YOUNGSTOWN, OHIO 86
CROBS/MARTIN/LITTLE
A I think I said they have a virtual monopoly
2 on the print newspaper market. a Now, let's take a look, then, at your
Exhibit 3. A (Complying.) Okay.
Did you find that?
Yeah. That's a. summary you prepared as to the one
of many sources of the news to illustrate your perspective that the Vindicator held a monopoly; right?
A That's right. Q Just so we are clear, if we were in Canton we would __ _ --- -... _....^------___._. .._.._.... _...... probably see similar numbers but instead of the
top of the list it would be the Canton Repository as
opposed to the Vindicator?
A That's what you might see. Q Okay. That is, the numbers that are
illustrated here are the typical numbers you would see
when there is one single daily newspaper in a
particular community?
A Yes. Q Okay. So, again, Columbus Dispatch in
Columbus, you would expect to see that type of
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 87
CROSS/MARTIN/LITTLE
circulation and percentages overall circulation with
the Dispatch Weekly?
Yes.
Now, did you conduct any type of similar review comparable to this chart to show what the 6 circulation coverage is for the Vindicator across all
7 of the very different types of news sources?
A No. That's not what I was trying to do.
Q Okay. And the other news source that I.
10 omitted was, of course, we have the internet, and that
11 is a, principal source of news for certain demographic
12 groups; is it not?
13 A Yes, it is. 14 Q That is, an 18-year old juror is likely not
15 to get his news from the Vindicator; is he?
A An 18-year old might be less likelv to get their news from the Vindicator in print. Well, in fact, it is -- an 18- to 25-year old
juror is substantially less likely to secure his or her
news from the print version of the Vindicator; correct?
A I don't know about jurors. I know what the
general demographic trends are in terms of age. And 23 younger people are less likely to read newspapers and
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 88
CROSS/MARTIN/LITTLE
they are more likely to get news on the internet.
2 0 So we will take off the label of juror. Say
3 someone between the age of 18 and 25, they are much
4 less lilcely to secure their news from print media as
5 opposed to some alternative source of media?
6 A That's correct. Q Okay. Now, if we then look at Exhibit 4,
please? A (Complying.) Q Do you have that in front of you? And this
was the chart you are prepared reflecting the
penetration;^-- ..--...... _. correct? ------__...-._...-_.. A Yes. Q When we have the Vindicator for the Monday
through Saturday at 40 percent, does that reflect that
60 percent of the individuals or households in this
county would not receive the Vindicator?
A Sixty percent of the occupied households
would not receive it. 5o less than half of the households occupied
in this county do not even receive the Vindicator on a
Monday through Saturday basis; right?
A That's what this says.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 89
CROS$/MARTIDT/LITTLE
And, in fact, even if we look at the Sunday
paper, according to your summary that you prepared --
and you believe the numbers are accurate; don't you?
A They are as good as we can get.
Q Okay. Do you have some concern about the 6 accuracy of the numbers you present to the court?
7 A I presented the best available numbers to the
court. These are the industry standards. These are
the numbers that are used by the newspaper industry.
Okay. So even as to Sunday, typically you
see higher readership on Sunday; do you not?
A That's very typical. Typically the folks want the coupons, don't
they, in the Sunday newspaper? A They want the coupons. They have time to
read the newspaper, et cetera. Q But even on Sunday when you have a higher
percent it brings, penetration of the Vindicator is
still less than 50 percent of the occupied households.
A That's correct.
Q And just so I am clear, when you did the summaries, did you break this down in the Mahoning County DMA or did you do it based upon Mahoning County
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 90
CROSS/MARTIN/LITTLE
itself? 2 A What do you mean when you are talking about
the Mahoning County DMA?
4 Q Well, that's a fair question. The DMA, as I
5 believe we are talking about, would be for, if you look back at Exhibit 2, the DMA for the Vindicator certainly
7 extends beyond Mahoning County; does it not? 8 A To answer your question, the number that you are looking at for penetration you could go back on the
Audit Report. That's where it comes from, and it's the
county number, In other words, it's the county-wide
number...... _-...... _..... _.. . Q That's what I want to niake sure that we are
clear on. So when we are looking at Exhibit 4, we are
talking about the county. That doesn't include
Trumbull County? A Oh, no. That's correct, it does not.
Q Just Mahoning County?
A That's right. Q And, certainly, as part of your academic
review you have seen analysis about monopolies in which
you look at -- in measuring monopolies you look at various mediums of communication; do you not?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, 0H1C3 2 11 Q Okay. That is when you are going to conduct
a monopoly analysis, you wouldn't confine yourself to
4({ whether or not a publication has on weekdays 40 percent
of the coverage for households; would you?
7 how I would do it,
8 Q But when yau are looking at that same market
9 you would look at the other mediums of news
10 distribution; would you not?
11 A Yes, you would.
12 11 Q Now, look at, then, Defense Exhibit 5; and 13 11 when is the first time you saw this document, for
14
Okay. Who gave that to you?
I'm sorry?
How did you get that?
It was supplied by the law firm that hired
Okay. Okay. Now, is it fair to say that
hen you are measuring the success of a TV station, you
not only look to see what the viewership was at the
OFF[CIAL SHORTHAhiD REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 92
CRQSS/MARTIN/LITTLE
start of the broadcast, but you then look at the
2 periodic increments during the balance of projects;
correct? A Normally I think that they break the ratings
down into auarter hours. Q So you would look, for example, for the
11:00 o'clock news, you would also look to see what is
occurring at the 11:15 portion? A Well, if the data is available. Q The reason you do that is, in part, broadcast
news, the initial reports are often impacted by the
programming that proceeds the broadcast? A That's one of the thirigs that affects
viewership. Q So, for example, if NBC had a very strong
Thursday night of programming, particularly at ten
o'clock, that strengthens a station's numbers at the
start of the eleven o'clock news?
A Yes. Q Then what you will look to see is what the
trending is at the 11:15 if that type of information is
available?
Yes.
OFFrCIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 93
CROSS/MP.RTIN/LZTTS,E
1 Q Okay. Now, in terms of the viewership as it
2 relates to WFMJ, what did you find was its penetration
3 numbers for the eleven o'clock news? A Well, remember what I said when I introduced
this. This is a single day, okay? That's the first
thing to keep in mind, and it's only a single da.y. so is your testimony you do not know what the
8 penetration levels are for the broadcast company on any
9 other day other than the single day that is reflected
10 on Defense Exhibit 5? A No. Actually, I do. I have seen some other
12 information that gives me the WrMJ ratings for standard
rating periods. Q Okay. What are those numbers? Tell us what
the penetration is. p,,. Well, the penetration essentially bounces
around a little bit, which is normal. There is some
seasonal variation in it. Generally seems to be
somewhere maybe 24 percent of the households watching
television up to sometimes bouncing up around 28 or 29. Q So at any given time for the news broadcasts
for WFMJ you would say that those people are actually
turning on their TV to watch the news are anywhere
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 94
I CROBS/MAR'rfVLTTTLE
between 24 or 29 percent tuning in to it? A As I recall, that's essentially what the
numbers show. Q What you didn't tell us is how many people
are actually tuning in? A Again, I don't have that document in front of
7 me. But if you will notice this tells you that, and I think the number that were tuning in -- well., I don't
9 want to say there. If you look at this document it
10 says that if you have, let's see, if you have a
11 32 percent share of the people watching the news, that
12 that -- well, actually, that was 44,000 on this given
13 day. I would have to look back at the other document
14 to tell you what the actual number was.
15 Q Well, let's take the one we have and work
16 with that. Okay. Are you saying on this particular
17 day there were 44,000 households that were tuning in?
18 A No. This -- this -- if you look at this,
19 this is giving you the number of people that they
20 believe were watching who were 18 and older. Okay. And so 44,000; is that your number? 21 Q 22 I You have to verbalize your response for the court
23 reporter.
OPF'ICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 95
cRC1S s lMART=Nly=TxyE
1 A Yes. 2 Okay. And this is not limited to Mahoning
3 County; is it not?
4 A No, it is not. 5 Q When we are talking about 44,000 people are 6 viewing in, out of how many?
7 A 505,000 potentially. That includes people who don't have their TV turned on. So you are talking less than ten percent? Q That's right. And less than ten percent, is that consistent
with the other materials that you looked at for _...... _ purposes of your preparation today? A I am not sure I understand the question.
Q Well, I am trying to find out when we look at
Defense Exhibit 5, what you are telling us is that the
number of folks being -- who were actually viewing my
client's broadcast would be as little as ten percent of
the available households; right? A Of the available people. Q Okay. And so of the available people,
because you could have five people in the household,
then, for example?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 96
CROSS/MARTIN/LITTLE
A. Yes.
And so,ne households have one?
A That's right.
Q For purposes of these statistics, they don't 5 count households, they count bodies?
6 A They are trying to counts bodies; that's
_right. Q So less than ten percent of those people who
could view the broadcast actually view it?
A Yes. Q Okay. And my question was, is this
consistent with the other statistical analysis that you
reviewed in preparation for your testimony?
A oh, this number? Yes. Okay. Thank you.
THE COURT: Mr. Little, while you are
shuffling papers, about how much more time do
you think you will need?
MR. LITTLE: Probably another 15, 20
20 minutes, Your Honor.
2_ THE COURT: Let me ask the assembled
22 people here, can you go another 15 minutes
23 before we take a break? Everybody says they
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 9'7 CROSS/MAR'S'It3/LITTLE
1 can, so we will conclude your cross, then we
2 will take a noon recess.
3 MR. LITTLE: Thank vou, Your Honor.
4 T1E3E WITNESS: May I have some water,
5 please?
6 THE COURT: Well, if there is any, you
7 may certainly have some. The witness would
8 like a little water. 9 MR. Mc Y: We have a fresh bottle
10 here.
11 THE COt312T: Okay. 12 MR. LITTLE: Thank you, Your Honor.
Sir, if we can next move to Exhibit 7, which
was some of the information you testified about as it
related to internet searches. A Okay. That must be the Vindy.com statistics.
Q It's marked Exhibit 7.
Okay. Go ahead.
Do you have that?
Yes. Q You are looking at Exhibit 6. There should
e blue stickers on them.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 98
CRO3S/MA.RTI'fI/LITTLE
A oh, this one, okay.
2 ^„3 Now, if we look at the second page of that 3 exhibit, the one with the bait stamp page two.
4 A Uh-huh. 5 Q What you see is that when in terms of
6 statistics it gives you information as to what specific
7 sources people are looking at or sites they are .2ooking
8 at when they go on the web site; correct?
9 A Yeso It's trying to tell you what particular
10 pages on the web site or what sections of the web site
they are viewing.
12 g So, for example, you might have information on deaths or information regarding tributes, for
example? A That's right. Q Two of those categories follow generically in
what we would call the obituaries; right?
A Yes. Q Then it shows you how long people might spend
on a particular page; right?
A Yes.
^,Y So and when you go on a page then you tap in and you go to other pages of the web site; correct?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 99
CROSS/IdARTTN/LITTI.E
1 A Yes, you might do that. Q Okay. And what this is recording is the
different pages you wcul.d have reviewed as part of your
time on that site? A Yes, that's correct. Q So if you go through and you go to the home
page and then you read a two-page art9.cle, that might
count as three pages?
A It might, yes. And., in fact, if you just read a couple
different articles, all of a sudden you end up with
maybe 10 or 12 pages for someone who spent ten minutes
on a site?
A Yes. Q Just so we keep that in context of what that
is. Now, you did not reach any conclusions in this
case, did you -- let me back up. You have told us that
you have some criticism of certain newspaper articles
that have appeared in the Vindicator.
A Yes.
Q You have not reached an opinion, have you, that the dissemination of that information prevents the
impaneling of an impartial jury in this case; have you?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, ®HIU 100
CROSS/MARTIN/LITTLE
1 A I have ria idea. That's not my area of
2 expertise. Q And just so we are clear on -- that is to 4 follow up on your last comu-nent. You don`t have an
5 expert opinion that the jury pool has been tainted in
6 any respect; do you?
7 mR. McCAF'E`REY: Objection, Your Honor.
g He has already indicated he has not.
9 THE CC3t7RT: Pardori me?
10 MR. MaCAE'EREY: The witness has already
11 indicated he is not competent.
12 THE COURT: I will permit the question...... __._._ - -... 13 THE WITNESS: Again, I don't know. This
14 is not my area of expertise.
15 Q And you, likewise, would not render an 7.6 opinion that to the extent that the court would open
these proceedings, that would have any adverse impact
18 on the impaneling of a jury; do you?
19 I do not know.
20 Now, with respect to your criticism of the
21 newspaper articles, one of the things you want to do 4
22 figure out what information the reporter had at the
23 time of the preparation of the article; right?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 1 A That's right. 2 Q And that is what sources that reporter had in
3 trying to assess whether the article is fair or unfair 4 from your perspective; right? 5 A Well, the best way to assess whether the
6 article is fair or unfair is to look at what they
7 published. 8 0 Also you have to know what they knew; right?
9 A Well, you can tell if you look at what they
10 published. 11 q Well, you don't know what statements made by
12 11 the Vindicator are right or wrong; do you? _..._ _...... -._ A You mean do I have any independent knowledge
14 R of any of this, the facts that are being reported in
these stories, is that what you are asking?
We will start with there.
No, I don't. So you can't tell us whether the statements
made in the Vindicator are true or false; can you?
A I cannot tell you if they are true or false.
Q And wouldn't you want to know in determining
in assessing whether something is fair or unfair,
whether the stateinent is true or false?
OFFICIAL SHORTHAND REPORTERS MAHONCNG COUNTY YOUNGSTOWN, OHIO 102
CR4?SSJM)kRTIN/LITTLE
A No. There is another vaiue at work here
2 which has to do with the question of whether or not the
3 stories are balanced.
4 Well, under the First Amendment there is no 5 obligation to have balanced reporting; is there? 6 A There is no obligation under the first amendment, but there is certainly an obligation as a
8 professional journalist. It's a professional tenet. Ckay. And whether something is balanced or
ot is often in the eye of the beholder; isn't it?
A It's a matter of judgment in some cases. Q So going back to my question, is it important
to you in assessing the fairness or unfairness of a
story to know whether or not the statements of the
writer are true or false? A As a general rule a good reporter, the
statements that they are making, are reporting
information that was provided to that reporter. So the
real question is not whether they are true or false;
it's whether or not they have accurately reported on
the information they have been given. Okay. An.d what information are you aware of
that was given to my clients that wasn't reported?
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO CROSS/MARTIN/LITTLE
A Well, I think that when I looked at the
2 coverage back in 2006 there was a lot of discussion about -- at that point, remember, this wasn't, as I
understand it, this wasn't a criminal matter at that
5 point. At that point the newspaper was reporting on
6 what some of the people who oppose moving the Welfare
7 office were saying about why they thought it shouldn't be moved. And going forward it seems to me that some
of that stuff started to drop away, and so you ended
up -- going forward you sort of ended up with a
question of this opposition to moving the office
whether -- what the reasons that had been given seem to
start to drop away from the coverage a little bit.
So what you are saying they reported --- the information you believe should have been reported at an
earlier stage of the coverage but not at a later stage?
A Yes. When I first read these stories I was
looki.ng for that kind of inforrnation. And then as I
went further back in the record I found it, and i was
thinking, well, okay, if they knew it, why didn't they
continue. I mean, they didn't have to report all of it
every time, but why didn't I continue to see it
summarized.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 104
CRC7SS/14ARTI'DT/LITTLE
1 When in terms of assessing the fairness or
2 unfairness of a story, you look at the works
collectively?
4 A Well, in assessing the fairness or unfairness
5 of an individual story?
6 Yes, sir. 7 That depends.
B One final subject, I think. You told us about information you relied upon in reaching your
orainions in this case as it related to pass-along statistics. What was the source of that information
again? __....,..___,...... ------A Well, the source of the current number that I
gave you is a poll that was done by the Scarborough
Research Company. Q And that research company is, I take it, a
private research company? A That's a private research company, and it is
the company that the Audit Bureau of Circulation uses.
It's the industry standard research company. Q And the statistics you were looking at were
published separately from any type of ABC report, that
is, Audit Bureau of Circulation report?
OFFBCIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 105
CROSSJMARTTN/L2TTLE
1 A Yeah. As I said originally, that number was
2 based on a poll that was done in 25 markets nationally.
3 One of those markets was not Youngstown.
4 Q I'm sorry?
5 A T said one of those markets was not 611 Youngstown. It was done in 25 -- those were nati,onal
numbers. None of those were based on activities based
on this gamut?
A No. 11 MR. LITTLE: Your Honor, that's all the auestion I have. Thank you very much. _.__...... THE COURT: Thank you very much, Mr. Little. Why don't we take the noon
recess at this point and reconvene at, let's
see, 1:30 enough time for you? All right.
Thank you.
(WHEREUPON, the Court recessed at 12:35
p,m.. December 6, 2010 and reopened at 1:45
p.m., December 6, 2010 and the proceedings
continued as fo1l.ows : )
THE COURT: Mr. Muhek, do you wish to
examine?
OFFICIAL SHORTHAND REPORTERS ^ MAtiON1NG COUNTY YOUNGSTOWN, OHIO 106
MR. MUHEK: No, Your Honor.
THE COURT: Any redirect?
MR. McCAFERMY: I do, Your Honor, but one of the other defense counsel wanted to
examine him.
6 MR. JLJHASZ: May I, Your Honor? I jus 7 have a few questions.
8 THE COURT: Sure. But for the record
9 you are?
10 MR. ,Tt3T•IASZ: I am john Juhasz. I
represent Mike Sciortino.
12 THE COURT: Okay. Glad you could make
ittoday. There was some question.
MR. Jt7Rk.SZ: There was, and that trial
went away. Thank you, Your Honor.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 107
cRpS S /b1ARTIN/.7U9ASZ
1 .OSS EXAMINATION
2 BY ME2. J'f7R}9.SZ : Q Sir, good afternoon. I just have a couple of
4 questions for you. Most of the things you talked
about, at least earlier in your testimony, had to do
6 with numbers, market share, that sort of thing. You
7 would agree with me?
A Correct. Q There was some of your testimony that you
talked about the contents of the publications; true?
Yes. Q And if I am understanding your testimony,
part of that is based upon not only your experience as
a professor bu't your experience as a journalist; is
that so?
A Yes. Q Now, Mr. Little when he was asking you
questions asked you some questions about the sources of
information that journa'_ists typically use. Do you
recall those questions?
A Yes. Q In fact, I think he asked you some questions
about being involved in public records litigation, that
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 108
i ort of thing; correct? 2 That's right, he did. 3 Is it fair to say that journalists use public
4 cords as par't- of the information that they gather in 5 order to be able to write a story; correct? 6 A Yes. Q For example, they can't just make things up.
That wouldn't be good professional journalism; would
VJe certainly hope they don't make things up.
So when somebody reports that somebody is
charged with a crime, presumably there is an indictment .__...... _.._...... _...... __...___...... _-_ or some other public filing upon which to base such a
story; true? MR. LITTLE: Your Honor, objection. His examination is leading. This is not an
adverse witness.
TPIE COURT: I would agree that he not being an adverse witness, don't iead the
witness.
MEt. 3UHASZ: Okay.
Bl' MF2. xTUH',A.SZ : Q Are there other sources where journalists get
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 109
CRO S 5/MA.Tt'1' TfY/ 3URAS Z
information besides public records?
A Yes. 3 Q And what might some of those be?
4 A Well, basicali.y you could divide it into two 5 things. Journalist get information from documents and
6 then they get information from people. Q And people might include, in a criminal case
such as this, public officials?
A Yes. If 1 understood your testimony, you reviewed
many, but not all, of the articles and things that
appeared in the Vindicator; is that true?
A That's correct. Did you also review things that appeared on
I did not view any video from WFMJ.
Q Did you view any -- you are familiar, aren't
you, with how stations now sometimes put a recap of a
televised story on the internet?
A That's right.
Q Did you look at any of those? Yes, I looked briefly at some of those.
Did you look at any of those for any of the
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO I 10
CRC3S S /MARTIN/J'S7HAS Z
1 other news stations, such as WYTV and WKBN?
2 A Yes, I did. did you see any 3 Q In the course of that review 4 stories or editorials that talked about, for example, 5 public officials mentioning that grand jury subpoenas
had been issued?
7 A No.
8 MR. LITTLE: Your Honor, I apologize.
9 am going to renew my objection. T thought
10 counsel was perhaps laying a foundation, but
11 he is continuing to basically cross examine
12 the witness. .___...._,.._..__.-----...._.___._.._ 13 THE COURT: Where are you going? What
14 are you trying to accomplish?
15 MR. JUIiASZ: I only have a few more
16 questions.
17 THE COt7i2T: What are you trying get out
18 here?
19 MR. JL3EiASZ: Well, the point is, Your
20 Honor, our filings suggest to the court,.at
21 least if I understand the Vindicator's
22 filing, the Vindicator's filing was you
23 shouldn't have put this order on until you
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 111
CROS S /MFa:RTIN /J'U73RSZ
hear evidence.
2 THE COURT: That's true. 3 mR. JUHASZ: And we suggested in our
4 filing that while there may be evidence of
5 the sort that's been put on by the Cafaro defendants, there is other evidence here, and
that has to do with what was raised by
Mr. Muhek in the Motioci in Limine.
THE COORT: There is a Motion in Limine,
10 and I am inclined to sustain that motion.
11 This motion has to do with the vindicator and
12 the station and its affect upon the populace
13 of Mahoning County. The fact that there may
14 have been other misconduct asserted I think
15 at least inferentially by you, other public
16 hirings, isn't part of this hearing. This
17 hearing is limited to the effect of what is
18 the coverage of the Vindicator and the
19 Vindicator's TV station and Vindy.com upon
20 the electorate, or not the electorate, but
21 the potential jurors of Mahoning County.
22 MR. JtTi3ASZ: I may, and I tell where you
23 my confusion comes then, because I thought we
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 112
CRQ58/MARTIN/JUHASZ
were here on the Vindicator and WF"MJ's motion
2 to vacate the order that this court had put
on. And our filing, in essence, said that while we were originally opposed to such an
order, we think that it has worked out well,
and the cases that I think the court relied
on, the Providence Journal and McVeigh case 8 and some of the or cases that I have seen,
9 have suggested that the court should hear
10 evidence before deciding what to do. That
11 is, are you going to vacate this order; and
12 if you are goirig to vacate this order, are you going to enter another order now that
evidence has been heard of a similar nature,
or are you not going to do anything at all?
Are you going to say I am going to let it be
public? But the cases that I have read, and
I think the cases that the court cited,
indicated that the court should hear
evidence.
TFIE COURT: That's what the court is
doing, but it has to be relevant evidence.
And the concern that Mr. Muhek has is getting
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 113
CROSS/MARTIN/JUHASZ
into the impropriety of public officials or
other people is simply irrelevant to what the
Vindicator has done. Don't let me put words
in your mouth.
MR. MUHEK: You understand my position
very well.
Ntft. JUHASZ; Wzth respect to we don't
agree with that because we think that many of
the things that have appeared is based on the
information that was released by the
government.
THE COtiR.T: I understand that. But the
relevance is to what the Vindicator is doing,
not the sources from whence they have derived
their information.
MR. ,7CTHASZ: Well, with respect, that
wasn't the focus of our filing at all,
actually, Your Honor. I don't know if the
court doesn't want to hear that motion today
or wants to hear it at later time, but that
was not the focus of our motion.
THE COLTLiT : I don't think it's the
proper subject of today's hearing.
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 114
CROSS/MARTTN/JUHASZ
MR. JIIHASZ: Then, if I may, and then I
2 will subsist after this. If the court
intends to hear it at a different time, then
we'1l ask to present the evidence at that
time. If the court does not intend to hear
that evidence, then I would like to make a
proffer at some point.
°i°HE COURT: Well, I will certairily allow
you to make a proffer today so you have got
that on the record. But I don't know if you
want to do it now or whether or not you want
to do it when we take a recess.
Ml,.?. 317IiASZ: I can do it after we finish
with this witness.
TbiE COURT: I don't think it's the
proper focus of today's hearing. If it's to
be brought up at a different time under a
different ruling other than this particular
motion, I would certainly entertain it. I
understand -- don't get me wrong. I
understand the thrust of what it is that you
are saying because I think that you have got
it in your motion. I mean, I think I know T OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO CROS B /1+IA.RfixN/ J'VIiAS z
where you are going. But I agree with
Mr. Muhek this is confined to the Vindicator
and the sister station.
MR. J'tTI3ASZ: Okay. We, and I just -- I
am not trying argue with you. I want to make
sure the record is clear.
7 THE COURT: I didn't take it that way.
8 MR. JUIiABZ: We don't agree with that
because we think the cases, the Providence
Journal, McVeigh, and some of the other cases
don't limit it simply to that sort of thing.
My recollection is in the Providence Journal ___...... _,.n..__...... __._.__--- --__... there was that sort of misconduct. That's
why we thought the evidence was relevant. I
the court is not going to let me go further
into that, then I will subsist and I will
make a proffer.
THE COURT: Make a proffer at the
appropriate time.
J'tIFIASZ: Thank you, Your Honor.
M[t. McCA&'FR'REY: Very briefly, Your
Honor.
u OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO REDIRECT EXAMINATION
2 BY MR. MCCAE'FREY: 3 Q Professor Martin, you were asked to testify
4 today to examine readership and viewership for local
5 news in Mahoning County. y A. That's correct. 7 Q Not the national news; correct?
g A That's correct.
9 ^ Not the local news in 87 other Ohio counties? 10 A That's correct. 11 Q And you are not a jury consultant; are you?
12 A That's correct. 13 ^ I want to clear something up with respect to
14 Exhibit 4 which has been previously marked, and it's
15 next to you, which relates to the Vindicator's
16 penetration of both daily and Sunday. Do you remember
17 being questioned about this exhibit by Mr. Little?
18 A Yes.
1 9 Q Arad I believe you testified that your 20 research indicated that the Vindicator's penetration
21 percentage was 40 percent for daily and just under
22 50 percent on Sunday?
23 A That's correct.
OFFICIAL SHORTHAND REPORTERS MAHONlNG COUNTY YOUNGSTOWN, OHIO 117
DIRECT/MARTIN
1 And that would be of households; correct?
2 That's of households, occupied households.
3 Q Right. Understanding that, you also examined 4 media outlets for 1.ocal news other than just the
newspaper itself; correct?
6 A That's correct.
7 Q You looked at WFNiJ's web site; didn't you? 8 That°s right. What were their claims with respect to their
percentage of viewership with respect to local news?
A Their claims are simple. They say they have the number one, the most watched newscast in their
arket.
Q And I asked you to look at the internet concerning coverage of local news. You did that;
didn't you? A Yes, I did. Q And you determined that the Vindicator was
essentially a monopol_y with respect to local news on
the internet; correct?
A I think that the Vindicator has a substantial
nonsignificant advantage in terms of the number of
23 readers on the internet. I am not sure that because
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 118
monopoly means something to an economist, and I am not
sure I want.to go there. But certainly a dominant?
Dominant, yes. It is the dominant -- the
dominant source of news on the internet in this market.
And you determined that not only does the
Vindicator have a web site but it's the television
station that it owns, WE11J-TV, it also has a web site
which broadcasts local news; is that correct?
That's correct.
MR. McCAP`FREY: Thank you.
MR. LITTLE: If I may, Your Honor? ^ ^ ^ * * *
19
20
21
22
23
OFFICIAL SHORTHAND REPORTERS MAHONtNG COUNTY YOUNGSTOWN, OHIO 119
RECROSS/MARTI.Ai/LITTLE
RECROSS EXAMINATION
2 BY NiR. LITTLE: 3 Q Sir, so in reaching the opinions you have
offered to the court today, you have relied in part on
5 various newspaper articles that you do not have as
6 sitting as exhibits next to you; correct?
A Correct. 8 You have relied upon various videos that you
9 reviewed on web sites that we do not have presented in
10 court today; correct?
A No. I said I did not review video,
12 Q You did not review video. You did review
13 materials on the internet in reaching your opinions
14 stated that you do not have in court before us today?
15 A I reviewed some stories that were posted, the
16 text version of the stories; correct.
17 Q And the stories you reviewed are not before
18 the court today? 19 A If I looked at one of these on the internet,
20 it's not there. That's what I can tell you. I mean, I
21 have looked at so many stories.
22 Q It sounds like you loolced at a lot of
23 different materials in reaching your opinion that
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO aren't included in that pile of papers to your left --
2 A That's correct.
3 Q --- marked as exhibits?
4 MR. LITTLE: That's all I have, Your
5 Honor. Thank you.
6 THE COtIRT: You may step down. Thank
7 you for your time today. Leave the paperwork
B here.
9 THE WITNESS: Thank you.
10 THE COURT: Safe travels home.
11 THE WITNESS: Thank you. 12
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO 121
REPORTER'3 CERTIFICATE
2 REPORTER'S CERTIFICATE
I HEREBY CERTIFY the above and foregoing
is a true and correct transcript of all
evidence introduced and proceedings had in
the hearing of the within-named case as shown
by ray stenographic notes taken by me during
the hearing and at the time the evidence was
being introduced.
C^ATHTRTMF-A. OFE'ICIAL COtJR'T REPORTER
OFFICIAL SHORTHAND REPORTERS MAHONING COUNTY YOUNGSTOWN, OHIO CLc"F'.K OF CC?i MAHONING OOUN FI.L£D ANTHONY VIVO. C`f".K STATE OF OHIO 2010 CR 800 Plaintiff December 21, 2010 Vs. DECISION ANDORREX-R ANTHONY M. CAFA1i.O, JIL THE CAFARO COMPANY (A) JUI7C,E WILLIAM H. WOLFF, JR. Secdon 6 OHIOVALLEY MAIS, CO. (B) On Assignment, Art. IV, THE IviARION PLAZA, INC. (C) Ohio Coastitntion JOHN A. MCNALLY (D) JOHN REARDON (E) MICI IAEL V. SCIORTINO (F) JOHN ZACHARIAH (G) MARTIN YAVORCIK (H) 2010 CR ^ iF11^ III^ ^tl^ IN^^ fllli iNll INI! ^^HI llIQ pIN'lll tlp P0s00 FLORA CAFARO (I) 000an8Ssz0 CRJUD Defendants This case is before the court on the Cafaro defendants' motion to temporarily seal all bills of particulars and notices of intent to introduce Rule 404(B) evidence until after trial, the motion of The Youngstown Vindicator and WFMJ-TV for an order vacating the September 9 and September 14, 2010 sealing orders and permitting public access to bills of particulars and motion to dismiss indictment, and the Cafaro defendants' motion to enlarge the January 3, 2011 pretrial motion filing deadline. Considering first the motion to enlarge the pretrial motion filing deadline, the state has represented that it does not object to an extension of that deadline and the motion is SUSTAINED. Consistent with the court's order of September 9, 2010, ail defendants shall have 90 days--measured from the date that counsel for the State informs counsel for the defendants that discovery is complete---to file pretrial motions and provide reciprocal discovery, except for disclosure of expert witnesses. The State's brief in response to the Cafaro defendants' motion to enlarge time, previously filed under seal, shall be unsealed. The Cafaro defendants have asked that Exhibit 2 and portions of Exhibit 5 to their motion to enlarge time remain under seal. On December 6, the court discar^ ed this ^- c^SLol ^ oooa^s request in chambers on the record with all present counsel, including oounsel for the Vindicator, who was provided with copies of the exhibits. Upon examination of the exhibits, the court is not persuaded that the unsealing of these exhibits "will create publicity that has a substantial likelihood of prejudicing the defendants' right to a fair trial...: ' National Broadcasting Company, inc. v. Presser, 828 F.2d 340, 347 (6s' Cir.1987). These exhibits shall be unsealed. The Vindicator's motion to vacate the sealing orders and for public access to the bills of particulars and motion to dismiss indictment and the Cafaro defendants' motion to seal all bills of particulars and Crim R 404(B) notices until after trial will be considered together. The Cafaro defendants' motion is confined to bills of particulars and notices of intent to use Crim R 404(B) evidence. Defendants Michael Sciortino, John McNally, and John Zachariah have joined the motion. (The Vindicator's motion is only concerried with . the bills of particulars.) The Cafaro defendants essentially argue that the bills of particulars and the Crim R 404(B) notices are in the nature of discovery and should not be accorded the "presumption of public access." The Vindicator argues to the opposite conclusion: that documents filed in this case come within the presumption and may not be sealed without the defendants' overcoming that presumption. For the present, at least, the court agrees with the defendants. In State ex rel. Mothers Against ârunk Drivers v. Gosser (1985) 20 Ohio St.3d 30, the supreme court--- eonstruing the Public Records Act---stated at 33: "It would seem to be clear that if, as here, the requested documents are received by, are under the jurisdiction of, and are utilized by, the court to render its decision, then their retention assures the proper funetioning of the governmental unit and, accordingly, could reasonably be classified as `public records' and required to be kept within the meaning of R.C. 149.43." In Presser, supra, the court stated at 345: "Thus, as with the disqualification issue, we conclude that proceedings inquiring into conflicts of interest by attorneys meet and satisfy the requirements of a qualified First Amendment right of access. Although not `lika a` ' ' OQth01 4 in the sense of a preliminary hearing such as the court considered in Press-Enterprise Il, both proceedings do require the court to make factuai determinations and to apply settled legal principles in order to rule." Significantly, both of these cases --- Supreme Court of Ohio and Sixth Circuit authority, respectively---state a test for according documents a presumption of public access that focuses on whether the documents implicate the decision making responsibility of the trial court. At this stage of the proceeding, the bills of particulars and Crim R 404(B) notices do not call upon the court to make a decision. Indeed, a bill of particulars need not be filed. Crim R 7(E). See also State ex rel. WHIO-TV7 Y. Lowe (1997) 77 Ohio St,2d 350,354. The federal circuits are divided as to whether these documents enjoy the presumption of public access. See United States v: Anderson, 799 F.2d 1438 (11ei Cir. 1986); United States v. Smith 776 F.2d 1104 (3" Cir. 1985). In this court's judgment, whether a document is filed is not dispositive. Anderson, supra. The court has caused to be filed without seal, or unsealed those documents filed to date, that do implicate the court's decisional responsibility. Furthermore, all filings, albeit under seal, have been identified on the public docket maintained by the clerk of courts. The Vindicator argues that the bills of particulars should be accorded the presumption of public access because they "reveal the specific alleged criminal actions of Although the Vindicator the Defendants (the very issue to be adjudicated in this case.)" accurately states the nature of bills of partioulars, its conclusion doesn't follow. The "alleged criminal actions" of the defendants are to be adjudicated by a jury at trial, not by the court at this stage of the proceedings. Accordingly, Exhibit 1 to defendants' motion, the Zachariah bill of particulars, a copy of which was furnished to counsel for the Vindicator on December 6, shall remain under seal. Although the court entered its sealing orders September 9 and 14, the Vindicator didn't formally appear in these proceedings until mid-November. The Vindieator now claims that the sealing orders were entered in disregard of mandatory steps that must be taken before any sealing may occur. OQ0015 To the extent that the court has determined that the bills of particulars and Crim R 404(B) notices do not come within the presumption of public access, the Vindicator has not been harmed by the court's sealing orders. The court has now unsealed those documents that do implicate the court's decision making funetion, thus obviating any harm done to the Vindicator by the court's sealing orders. Assuming, arguendo, that the bills of particulars and Crim R 404(B) notices are not insulated from the presumption of public access, the court nevertheless finds that publication of these documents would lead to a "substantial probability that the defendants' right to a fair trial" in Mahoning County "would be prejudiced." Presser, supra, at 346. Hugh Marfln, an associate professor at the Ohio University School of Journalism, testified as an expert witness. The court finds his testimony credible and finds that 1) The Vindicator and its website, Vindy.com, have a virtual monopoly on the dissemination of local news in Mahoning County; 2) The Vindicator's coverage of this case has been intense and "very tough" on the defendants, Further, the court has observed the homepage of Vindy.com over time. Vindy.com's homepage contains a daily section styled "Oakhill Corruption" in which are collected numerous articles and editorials about this case and related matters as well as links to the indictment and to the Flora Cafaro/Martin Yavorciek bill of par6iculars. Taking into account that the bills of particulars and Crim R 404(B) notices not only detail the alleged wrongdoing of the defendants but contain information that may not be adnvssible at trial, and fiirther taking into account the Vindicator's intense, tough eoverage of this case, the court concludes that publication of these documents would result in a substantial probability that seating an impartial jury in Maboning County would be impossible, particutarly given the further difficulty of finding jurors able to serve for the duration of what prontises to be a lengthy trial. The Vindicator contends that the court's concern with pretrial publicity can be alleviated by simply changing venue to an Ohio county beyond its reach, citing R.C.2901.12(K) and Crim R i g(B). While the statute and rule appear to authorize a change of venue at this time, and while a change of venue at this time niight serve the interest of judicial economy (or at least make life easier for the court,) the court must also respect the defendants' right to a "public trial by an impartial jury in the county in which the offense(s are) alleged to have been committed." Ohio Const.,Art. I, Sec. 10. While this right might not be absolute, the supreme court has stated that "a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality." State v. Treesh, 90 Ohio St.3d 460,. 464 (2000). This suggests that the court's effort to seat an impartial jury should begin in Mahoning County. As to future filings other than the bill of particulars relating to the Cafaro defendants, should the State choose to file it rather than simply furnish it to the defendants, the court agrees with the Vindicator that it is entitled to notice of any effort to seal a document or close a proceeding and the right to participate in proceedings relating to whether a document should be sealed or a proceeding closed in whole or in part. As to future document filings, if counsel for the defendants seek to have a document filed under seal, they shall file a motion to that effect which describes the document for which sealing in sought. A copy of the document, together with a memorandum in support of sealing, shall be served upon counsel for the Vindicator who, as an officer of the court, shall not reveal the content of the document to the Vindicator. Counsel for the Vindicator shall have seven days to respond. The court will thereafter decide whether any portion of the proposed filing should be sealed. If any portion of the proposed filing is to be sealed, the doeument will be redacted as necessary and filed by the court as redacted. In the event of redaction, the court will assemble the unredacted proposed filing, memorandum in support of sealing, and the Vindicator's response, and file the package under seal. If none of the document is to sealed, the court will overrule ®4441,7 the motion to seal and counsel for the defendants may proceed to file the document without seal. If counsel for tha State intends to file a document that can be reasonably expected to trigger a concern on the part of defense counsel that publication of the document will prejudice the impaneling of an impartial jury in Mahoning County, counsel for the State shall submit a copy of the document to defense counsel for review, Defense counsel shall have seven days to contact counsel for the State if they believe sealing is necessary, If defense counsel fails to contact counsel for the State, the docurnent shall be filed. If defense counsel timely advises counsel for the State that sealing is necessary, counsel for the State shall withhold filing the document and defense counsel shall immediately file a motion to have the document filed under seal, identifying the document to sealed. Contemporaneously with filing the motion to seal, defense counsel shall serve a copy of the document, together with a memorandum in support of sealing, to counsel for the Vindicator, who, as an officer of the court, shall not reveal the content of the document to the Vindicator. Counsel for the Vindicator shall have seven days to respond. The court will thereafter decide whether any portion of the proposed filing should be sealed. If any portion of the proposed filing is to be sealed, the document will be redacted as necessary and filed by the court as redacted. In the event of redaction, the court will assemble the unredacted proposed filing, memorandum in support of sealing, and the Vindicator's response, and file the package under seal. If none of the document is to be sealed, the court will overrule the motion to seal and the State may proceed to file the document. The Vindicator shall have the opportunity to file an objection whenever the court seals a document in whole or in part. See State ex rel. Dispatch Printing Company v. Lias (1994) 68 Ohio St.3d 497,498. The court need not address at this time the procedure to be followed where closure of proceeding is sought in the absence of any such requests at this time. Counsel for the Vindicator has indicated that Lias, supra, prescribes the appropriate procedure. The Cafaro defendants' motion to temporarily seal all bills of particulars and Crim R 404(B) notices is SUSTAINED BUT SUBJECT TO FURTHER ORDER OF COURT. The Vindicator's motion to vacate the September 9 and September 14 sealing OOQOIE orders is SUSTAINED PROSPECTIVELY, except as to a bill of particulars relating to the Cafaro defendants', and those orders are replaced by the procedure described above. The Vindicator's motion for public access to the motion to dismiss was sustained at bar December 6. IT IS SO ORDERED. JUDGE WILLIAM H. WOL Sitting On Assignment Article IV, Section 6 Ohio Constitution CL.ERK: Copies to all counsel of record and all unrepresented parties Terri Thompson From: William H. Wolff Jr. ([email protected]] Sent: Monday, January 10, 2011 8:18 PM To. Terri Thompson; [email protected] Cc: [email protected]; [email protected]; [email protected]; [email protected];'Garg, Anjula';'Stamboulidis, George'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; 'John McCaffrey'; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; jgerald [email protected]; [email protected]; [email protected]; [email protected]; Marion H. Little Subject: RE: From Marion Liftie re: State v. Cafaro, et al. Mr. l.ittle' Thank you for your inquiry. The court intends that determinations of whether a document should be sealed in whole or in part will be made in camera. Accordingly, the Cafaro defendants' motion to that effect was filed under seal, and your memorandum contra should likewise be filed under seal. The clerk has been identifying documents filed under seal on the cierk's public docket by title and wiil continue to do so, according your clients and the public with notice of what is filed but not the content. William Wolff. From: Terri Thompson [mailto:[email protected]] Sent: Monday, January 10, 2011 1:20 PM To: [email protected]; [email protected] Cc: [email protected]; [email protected]; [email protected]; [email protected]; Garg, Anjula; Stamboulidis, George; [email protected]; [email protected]; dday@walterhav,com; rcascarilla@walt:erhav.corri; [email protected]; John McCaffrey; [email protected]; [email protected]; [email protected]; [email protected]; rsynenberg@ao€.com; [email protected]; [email protected]; [email protected]; :[email protected]; Marion H. Little Subject: From Marion Little re: State v. Cafaro, et al. Terri Thompson Zeiger Tigges & Little LLP 11 S. High Street, Suite 3500 -olumbus, OH 43215 ;614) 324-5065 1/21/2011 ZEIGER, TIGGFS & LITTLE LLP ATTORNEY9 AT LAW TECEPHONE 44514I965.5900 WRITER'S 0 6€F 6AC51MILE I614F966-7900 3500 HUNTINGTON CENTCR 41 SOUTH HIGH ffiTkEET {6€4} 3653113 COLUMBUS. OHIO 43215 January 10, 20 1 Via Email The Honorable William H. Wolff, Jr. Common Pleas Judge, Sitting By Assignment Courtroom 9 Mahoning County Court House 1.20Market Street Youngstown, OH 44503 Re: State of Ohio v. Anthony M. Cafaro. Jr.. et al. Case No. 2010 CR 800 Mahoning County, Ohio Common Pleas Court (Wol Dear Judge Wolff: Enclosed is a service copy of our Memorandum In Opposition Of The Youngstown Vindicator And WFMJ-TV To Detendants' Motion For Order: (1) Redacting Tbree References Contained In State's Motion To Enlarge Time In Which To Comply With Criminal Rule 16 Discovery Requirements And For An Order Allowing Disclosure; And (2) T'he Entry Of A Protective Order Governing Disclosure And Use Of Bills Of l'articulars Filed Under Seal. By this letter, we are providing a copy to all counsel. However, we have not yet filed it. Pursuant to this Court's instructions, it is due on Tuesday, November 11, 2011. We believe it is properly filed as a matter of public record. We likewise believe all motions made by any of the parties with respect to closure must be filed as a matter of public record. However, to ensure that we act. consistent with the Court's expectations, we request that you advise whethcr we may proceed to publicly file this with the Clerk of Courts. ZEICrEB, TIGGES & LITTLE LLP ]anasry 10, 2011 Page 2 Thank you for the Court's attention to Ve Enclosure cc: itlt Counsel of Record (via email) 924A{)t:206103 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. THE VINDICA`I'OR PRINTING CO., e Case No. Relators, -vs- THE HONORABLE WILLIAM H. WOLFF, JR. Respondent. AFFIDAVIT OF MARION K. LIT'TLE, JR. STATE OF OHIO : SS COL'NTTY OF FRANKLIN : Marion H. Little, Jr., first being duly sworn according to law, deposes and states that he has personal knowledge of matters set forth herein except as specifically noted otherwise, and further states as follows: I. I am the attorney for Relators in the above-referenced proceeding, and also al., Case No. 2010 CR represent Relators as part of State of Ohio v. Anthonv M. Cafaro, Jr., et 800 and subsets A - I(collectively, "Case No. 800"). A. Defendants' Non-Public, De Facto Motion for Closure, Respondent's "Closed" Closure Hearing and Respondents' September 2010 Closure Orders. 2. In late July 2010, a Malioning County grand jury retunied a 73-count indictment charging seven persons and three organizations, including public officials, with multiple felony and misdemeanor charges stemming from an alleged conspiracy to prevent or delay the relocation of the Malioning County Jobs and Fatnily Services offices. The Defendants in Case EXHIBIT 0 No.-800 are: Anthony M. Cafaro, Jr.; The Cafaro Company (A); Ohio Valley Mall Co. (B); The Marion Plaza, Inc (C); John A. Mcnally (D); John Reardon (E); Michael V. Sciortino (F); John Zachariah (G); Martin Yavorqk (H); and Flora Cafaro (1). 3. As documented herein, Defendants have sought to cloak with secrecy and shield from public view all proceedings in Case No. 800. 4. The first example was Defendants' "de facto motion" for closure submitted in a letter format to Respondent. Contrary to the Criminal Rules, Sup. R. 45, and the precedent from this Court, befeudants' de facto motion was not submitted as an actual motion, nor was it filed as a matter of public record. Rather, on or about September 2, 2010, counsel for Defendants Ohio Valley Mall Company and Marion Plaza, Inc. (joined by other Defendatits, as well) in Case inter alia, No. 800, sent a letter to Respondent in the above-referenced proceeding requesting, that Respondent issue an Order requiring that the Bills af Particulars to be filed by the State of Ohio be filed tmder seal (the "September 2 letter"). Specifically, citing the danger of allegedly sealing of these filed docutnents prejudicial pre-trial publicity, the letter sought presumptive (without a prior evidentiary hearing) so that the Defendants could have a subsequent opportunity to review them and "move to redact" portions thereof. A true and accurate copy of the Septetnber 2, 2010 letter is attached to Relators' Complaint as Exhibit A. 5. On or about September 7, 2010, the State of Ohio responded to the aforementioned letter. A true and accurate copy of the State of Ohio's letter dated September 7, 2010, is attached as Exhibit B to Relators' Complaint. This letter was, likewise, not filed as a matter of public record. 6. After receiving Defendants' September 2 letter and the State of Ohio's September 7 letter, Respondent on September 9, 2010, conducted a closed-door closure hearing with 2 counsel for the parties. The public was not invited and the discussions were not conducted in a public courtroom. No notice of the Defendants' de facto rnotion for a presumptive sealing of filed documents was made on a publicly-available docket. 7. Following this non-public proceeding, Respondent issued an order in Case No. documents filed shall be filed under seal (the "September 800 requiring, in pertinent part, that all 9 Order"). The September 9 Order, a true and accurate copy of which is attached to Relators' Complaint as Exhibit C, and which was issued after these private proceedings, stated, in pertinent part: All filings in this case shall be under seal with the exception of filings that are clearly procedural and cannot possibly implicate Defendants' concern about receiving a fair trial. No evidence was considered by Respondent. No particularized findings of a compelling need or the lack of less restrictive alternatives were made to support this presumptive closure. S. 'fhe public and press were afforded no opportunity to object to the propriety of such presumptive and blanket closure of filed court records. 9. Subsequently, on September 14, 2010, following an editorial that appeared in the Vindicator, the Respondent issued another order in which it provided further explanation as to ^nents under seal (the "September 14 Order"): the "protocol" with respect to the filing of docu^ to object in writing The protocol allows counsel for the defendants to content in the State's filings that they consider unduly prejudicial such that it should not be part of the public record prior to trial. The State has the opportunity to respond in writing to these objections. The court will rule on the defendants' objections promptly after the State resbonds or the deadline for response expires. The court contemplates ruling on the objections without oral argwnent uniess argument is requested by counsel. If the court concludes that any material should not be made part of the public record prior to trial, it will order that material to be redacted from that filing and the balance of the filing will, as redacted, be unsealed. Although the foregoing discussion anticipates objections 3 by the defendants, the State may utilize the same protocol as to defendants' filings. [September 14 Order, at 1-2 (emphasis added).] Again, Respondent held no public (let alone evidentiary) hearing before issuing the September 14 Order. A true and accurate copy of the September 14 Order is attached to Relators' Complaint as Exhibit B. 10. Further, in his September 14 Order, Respondent again provided no specificity as to the substantial need for such closure, or with respect to available alternatives. Instead, Respondent once again spoke only in terms of generalities, noting that: This case has attracted did will eontinue to attract significant media coverage. ... The concern of the court is that fair and impartial jurors can be found in Mahoning County, i.e. that they cannot set aside due to pretrial publicity. [Id.at1.] 11. In suin, under the protocol established by Respondent by way of his two September Orders, all filings in the case were to be made under seal, without a prior evidentiary hearing and/or proof by clear convincing evidence of the need for such closure. Then, only after not the nublic or press-would have the documents had been filed under seal, the parties-but an opportunity to argue as to which portions of such filings will remain sealed until trial, currently scheduled for June 2011. Finally, the Respondent would rule on the parties' arguinents apparently without providing an opportunity for the public and/or press to be heard on the issue of sealing the records. 12. Predictably, the result of this protocol was that clearly public documents essential functions, such as the November 16, 2010 joint motion of Defendants to the Court's adiudicatorv Cafaro and others to dismiss iadictment in Case No. 800; the November 10, 2010 Motion of 4 Defendants to Temporarily Seal all Bills of Particulars and Notices of Intent to Introduce Rule 404(B) Evidence Until After Trial; as well as a bill of particulars filed on November 5, 2010, were filed under seal, without an opportunity for the public or press to be heard. Copies of these documents are attached to Relators' Complaint as Exhibits E and F. 13. Defendants had, thus, succeeded in their efforts to cloak these proceedings in secrecy. B. Relators' Efforts To Challenge The Proeess. 14. In light of the protocol implemented by Respondent's September Orders, Relators instituted efforts to gain access to the documents that had presumptively been filed or provided to the Court under seal. 15. On or about November 15, 2010, Relators served, via hand delivery and facsimile; a public records request upon Respondent, a true and accurate copy of which is attached to Relators' Complaint as Exhibit G, seelcing the opportunity to inspect the following public records (the "November 15 Public Records Request"): all (a) filings made; (b) orders issued or made, irrespective of whetlier journalized; and/or (c) documents submitted to the Court in State of Obio v. Yavorcik, et al„ Case No. 2010 CR 00800 H, Mahoning County Common Pleas (Wolff, J.). 16. The November 15 Public Records Request was intended to capture, among others items, those documents submitted by Defendants to Respondent but noticeably not filed with the Clerk of Courts. 17. On or about November 17, 2010, Relators served, via hand delivery and facsimile, a public records request upon Respondent, a true and accurate copy of which is attached to Relators' Complaint as Exhibit H, seeking the opportunity to inspect the following public records (the "November 17 Public Records Rcqu.est"): 5 all (a) filings made; (b) orders issued or made, irrespective of whether journalized; and/or (c) documents subinitted to the Court in State of Ohio v. Anthonv M Cafaro Jr, et al., Case No. 2010 CR 00800 and subsets A - 1, Mahoning County Common Pleas Court (Wolff, J.). We had previously made a public records request in Case No. 2010 CR 00800(H). 18, On or about November 17, 2010, Relators served, via facsimile, a public records request upon the Clerk of Court, a true and accurate copy of which is attached to Relators' Complaint as Exhibit 1, seeking the opportunity to inspect the following public records (the "November 17 Public Records Request"): We noticed the filing of the following documents on November 5, 2010; and November 16, 2010: 1. Bill of Particulars for John Zachariah filed Under Seal by Plaintiff (filed 1115/10 in Case No. 2010 CR 00800(G)); 2. Memorandum of Law in Support of Joint Motion of Anthony Cafaro Sr., The Cafaro Co., Ohio Valey Mall, Marion Plaza Inc. and Flora Cafaro to Dismiss Indictment Filed Under Seal (filed 11/16/10 in Case No. 2010 CR 00800); and 3. Joint Motion of Anthony Cafaro Sr., The Cafaro Co., Ohio Valey Mall, Marion Plaza Inc. and Flora Cafaro to Dismiss Indictment Filed Under Seal (filed 11/16/10 in Case No. 2010 CR 00800). We are not able to access these documents and thus we ask that you please provide us a copy for inspection or, if it is more convenient for you, simply have a copy made and sent to the undersigned. We will obviously pay you for all copying expenses. My assistant, Terri Thompson, can provide you a Federal Express number if that is helpful. 19. On or about November 22, 2010, Relators served, via hand delivery and facsimile, another public records request upon Respondent, a true and accurate copy of which is attached to Relators' Complaint as Exhibit J, seeking the opportunity to inspect the following public records (the "November 22 Public Records Request"): 6 the following document filed on November 18, 2010, in Case No. 2010 CR 00800 G: Motion to Join Motion and Memorandum of Law in Support of Motion to Temporarily Seal All Bills of Particulars and Notices of Intent to Introduce Rule 404(B) Evidence Unti.l After Trial Filed by Defendant Under Seal. 20. Having not been provided access to the requested documents, Relators, on or about November 18, 2010, filed, as part of Case No. 800, a Motion for an Order Vacating the September 9 and September 14, 2010 Sealing Orders and Permitting Public Access to Bills of Particulars And Motion to Dismiss Indictment, C. Defendants' Opposition Despite Their Ongoing Efforts To Attract Media Attention And Disseminate "Their" Sto To Potential Jurors. 21. This Motion was opposed by the various Defendants, who principally argued that, absent closure, significant pretrial publicity relating to Court filings would prejudice their right to a fair trial by a jury of their peers in Mahoning County. They so argued even though several of the Defendants, themselves, had attempted-through press releases-to use the media as an outlet for declaring their innocence. 22. Specifically, even though Defendants had sought to cloak with secrecy all proceedings occurring in Case No. 800, they were simultaneously and purposefully interjecting press releases declaring their innocence into the public. At the December 6, 2010 hearing, which is discussed further below, the lone witness called by Defendants revealed that Defendants had been waging a pubic relations campaign proclaiming their innocence. A copy of the transcript from that he< g s attached to Relators' Complaint as Exhibit K. Q• So in this particular case you are aware that the defendants that are sitting in this courtroom today complaining about pretrial publicity have, in fact, been issuing press releases 7 hoping to general media attention regarding the positions they have taken; right? A. Yes. And, in fact, in the press releases that have been issued by the defendants they have proclaimed their innocence; have they not? A. Yes. [Hearing Tr. pp. 62-63.] 23. Defendants' expert was forced to concede that the press releases issued by Defendants were intended to attract media attention and cause the republication of the content from the press release. [Id. at 58-62,] 24. Additionally, Defendants' witness, likewise, conceded that Defendants had produced infomercials to conimunicate their position and that the infomercials had been cablecast. [Id. at 58.] 25. Hence, Defendants' efforts to close these proceedings were only the first part of a multi-part strategy to obviously manipulate the potential jury pool. The second part, as noted above, was to flood the media market with information Defendants viewed as favorable. P. The December 6 2010 Hearine. 26. In response to Relators' Motion, Respondent scheduled an evidentiary hearing, which was conducted on or about December$, 2010 (the "December 6 hearing"). This was the first opportunity the public or press was afforded to challenge the secret proceedings. 27. As part of the December 6 hearing, and in support of their arguments for closure of Court records, the Defendants presented one witness, who was all form and no substance as to the issue to be considered. Hugh Martin, a journalism professor from Ohio University, struggled to say anything in support of Defendant' secrecy efforts. His testimony was very limited. He 8 first opined that The Vindicator had a monopoly on print media and thought this was significant even though less than fifty percent of Mahoning County even received the paper: Q: When we have the Vindicator for the Monday through Saturday at 40 percent, does that reflect that 60 percent of the individuals or households in this county would not receive the Vindicator? A. Sixty percent of the occupied households would not receive it. [Hea'ring Tr. p. 88.] 28. He also opined that the. Vindicator's coverage was somehow "tough"-although he did not dispute the truth of the stories, one of the items he was complaining about was actually an "opinion" from the Vindicator, not a news story, and it was expected the Vindicator would extensively cover a story involving public corruption. Q• So you can't tell us whether the statements made in the Vindicator are true or false; can you? A. I cannot tell you if they are true or false. [Hearing Tr. p. 101.1 29. As to WFMJ, he merely stated that less than 10 percent of those people who could view the station's programming actually view it. [Id. at 96.] 30. However, on the key points, Mr. Marfin conceded that he had no knowledge of and could not offer an opinion with respect to the likelihood that aiy such media coverage would taint the jury pool or prevent the Defendants from obtaining a fair trial, even in Mahoning County. You have not reached an opinion, have you, that the dissemination of that information prevents the impaneling of an impartial jury in this case; have you? A. I have no idea. That's not my area of expertise. ... You don't have an expert opinion that the jury pool has been tainted in any respect; do you? A. Again, I don't know. This is not my area of expertise. And you, likewise, would not render an opinion that to the extent that the cow-t would open these proceedings, that would have any adverse impact on the impaneling of a jury; do you? A. I do not know. [Hearing Tr. pp. 99-100.1 31. In fact, Mr. Martin had done nothing to even advise himself on the central point of the hearing-prejudice to Defendants. Q Okay. And for purposes of your testimony today I take it that you did not, for example, conduct any type of survey or polling; did you? A. No. [Flearing Tr. p. 55.] Q• You can't tell us what the demographics are, for example, of the likely jurors in this case? No. Q• And you can't tell the court to what extent the likely jury pool in this case would have read any of the articles that appeared in the Vindicator; can you? A. No. Q• Or you, likewise, can't tell the court to what extent any of the likely jurors in this case would have seen any coverage from the news station regarding this particular case; can you? A. No. 10 [Hearing Tr. p. 57.] 32. Even then, Defendants' expert testimony was inadmissible as he readily conceded he had relied upon out-of-court statements in forming his limited opinion (Hearing Tr. pp. 14-15, 24, 32-33). 33. The Defendants presented no other evidence to demonstrate that pre-trial publicity, as it relates to Court filings or proceedings, would in any way prejudice their right to a fair jury trial. . E. Respondent's December 21, 2010 Order. 34. On or about December 21, 2010, Respondent issued an Order (the "December 21 Order") in which he ordered the unsealing of certain exhibits attached to one of the Defendants' motions that was filed under seal. A true and accurate copy of the December 21 Order is attached to Relators' Complaint as Exhibit L. 35. In the same Order, however, Respondent further found, inter alia, that the filed bills of particulars and Rule 404(B) notices should remain sealed, and not subject to public access. 36. Respondent also rejected change of venue as a reasonable alternative to closure, noting simply that "the court's effort to seat an impartial jury should begin in Mahoning County." [Id. at 5.] F. The December 21, 2010 Order Did Not Reverse The Presumption Of Closure Effectuated By Respondent's Prior Orders. 37. Although Respondent's December 21 Order purported to prospectively vacate the September 9 and 14 Orders, ultimately, as implemented by Respondent, such Order merely continued the improper presumption of closure effectuated by his prior Orders. 11 38. Specifically, on January 5, 201.1, Defendants filed, under seal, a Motion for Order: (1) Redacting Three References Contained In State's Motion to Enlarge Time in Which to Comply With Criminal Rule 16 Discovery Requirements and for an Order Allowing Disclosure; and (2) The Entiy Of A Protective Order Governing Disclosure And Use Of Bills of Particulars Filed Under Seal. 39. Relators' opposed this Motion, but prior to filing their opposition, Relators, by letter dated January 10, 2011, sought clarification froin Respondent that their brief should be filed as a matter of public record, inasmueh as it squarely related to the issue of closure, a presumptively-public proceeding. Respondent, however, responded by advising Relators to file their memorandurn under seal. By e-mail to counsel for all parties dated January 10, 2010, Respondent stated the following: The court intends that determinations of whether a document should be sealed in whole or in part will be made in camera. Accordingly, the Cafaro defendants' motion to that effect was filed under seal, and your memorandum contra should likewise be filed under seal. T'he clerk has been identifying documents filed under seal on the clerk's public docket by title and will continue to do so, according your clients and the public with notice of what is filed but not the content. A true and accurate copy of the Jamiary 10, 2010 e-mail is attached to Relators' Complaint as Exhibit M. 40. Respondent's protocol, as reflected in his January 10 e-mail, presumptively establishes not only the closure of records filed with the Court, bart of the closure proceedings, themselves. 12 - Fui-tl?er Affiant sayeth naught. Q 5worn to and subscribed in my presence this Teri L. 924-001: 206378 NoYary P of ° AW= My Commission EVims O&N-2014 ^F^ 13