To Make Informed Decisions, Public Must Have Access

by Jack Greiner, Esquire
Hat tip: Sunshine Week
3/12/2010

As a young lawyer, I worked for a little while on some of the litigation that grew out of the collapse of Home State Savings Bank (and much of the rest of Ohio’s saving and loan industry) in the mid-1980s. That’s not much of a surprise, since virtually every firm in town was involved in one way or the other. But it was an exciting case to be part of. I remember learning so much from some of the best lawyers in town. And I still recall Marvin Warner’s criminal sentencing.

Warner had been the head of Home State, and by the time the dust settled, he was about as popular as Old Man Potter from “It’s a Wonderful Life.”

Warner was convicted on a number of charges related to the debacle. When he came before Judge Robert Ruehlman for the announcement of his sentence, he got a taste of what the local folks thought of him. Among other pronouncements, Judge Ruehlman told Warner, who had owned a substantial horse farm, that “[w]hen I get through with you, the only horse you will be riding is one of those horses in front of the K-mart on the little merry-go-round.”

That was in 1991, and I still remember it clearly. And while pretty much nobody liked Warner, a lot of folks questioned whether Judge Ruehlman went a little over the top. It made for an interesting debate.

And it brought to focus some broader questions – How much deference does a criminal defendant deserve? Should a judge lecture a defendant? Does it help with the rehabilitation process? Should the judge communicate the community’s sense of outrage? And is there a limit to how passionately a judge should convey that outrage?

Public left in the dark

But imagine for a minute if the public were not allowed to attend court proceedings. Would that debate have occurred? Probably not. And the public would not have had that glimpse into the workings of the criminal justice system. Given that we elect judges in Ohio, it’s important that potential voters are able to witness such exchanges. An uninformed electorate is never a good thing.

Our federal and state constitutions, along with Ohio’s Sunshine Laws, help protect the public’s right of access to court proceedings, meetings of public bodies and to public records. But it’s not a given that courts and other public bodies will always voluntarily open their doors.
In the more recent case of Michael Veillette – the man accused of killing his family and setting fire to his Mason home – Rachel Hutzel, the Warren County prosecutor, asked the court to prohibit the public from attending all pretrial proceedings. Hutzel informed the court that such an extreme measure was necessary to prevent potential jurors from being prejudiced by pretrial publicity. Despite that fact that Hutzel presented no evidence to back up her claim concerning pretrial prejudice, the Warren County Court granted her motion.

What Hutzel did not mention was the fact that if the proceedings occurred behind closed doors, the public would have no way of assessing whether her office was handling the high-profile case fairly and competently. Fortunately, the Ohio Supreme Court overruled the Warren County decision.

The Cincinnati Public Schools have gone to great lengths to shield from public review the resumes of unsuccessful superintendent candidates. But if the public can only see who got hired, and not see who got rejected, how can we determine whether the school board hired the best candidate? Again, without access, the public body avoids scrutiny.

Scrutiny key to democracy

It’s never fun having someone scrutinize your work. I still vividly recall the nuns at St. Martin’s School in Cheviot cringing at my penmanship, and telling my parents I needed to put in extra work at home. As a young lawyer it was painful to turn in a brief to a partner and watch him edit it with an intensity that would make Edward Scissorhands jealous. But that’s part of life. You deal with it.

Judges, prosecutors and other public servants receive their scrutiny from the public. And the public must be able to observe the work of those public servants in order to make informed decisions about the quality of that service – just like the nuns who observed my cringe-inducing penmanship and the partner who marked up my draft brief with a gallon of red ink.

Ohio’s Sunshine Act ensures that the public has the opportunity to intelligently scrutinize the work of all public officials. Those laws are critical in a democratic society.

And The Cincinnati Enquirer has been proud to stand up for the public’s right to know on the occasions when those public officials have tried to shut the public out.

Cincinnati attorney Jack Greiner of Graydon Head & Ritchey practices First Amendment law and represents The Enquirer.

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