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Supreme Court of Ohio

Supreme Court of Ohio

IN THE SUPREME COURT OF

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 , 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 , 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 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 ?

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 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 (^ 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 .

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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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 .

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 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 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 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

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