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Dimora trial judge to rule on release of evidence, exhibits

2:51 PM, Mar 16, 2012   |    comments
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AKRON -- U.S. District Judge Sara Lioi will rule on whether the exhibits, wiretaps, and evidence presented in the trial of Jimmy Dimora and Michael Gabor are released at this time.

WKYC-TV and other media outlets requested release of those items during the trial, after the verdicts were read, and again after the jury was dismissed. 

After the jury was dismissed Wednesday, the attorneys for both defendants held a sidebar conference at the bench with Lioi.

According to court records released Friday morning, Jimmy Dimora's attorney Bill Whitaker objected to the release of any evidence during that sidebar.

Dimora still faces a possible second trial with co-defendant Michael Forlani. His attorneys think releasing the exhibits from this trial would unfairly prejudice potential jurors in the next trial.

Lioi then decided that if a request was made for the release of the exhibits, she would permit attorneys for both sides to respond before she made her decision.

Dimora's attorneys, Bill and Andrea Whitaker, as well as co-defendant Michael Gabor's attorney Leif Christman, have until noon Friday (today) to file any briefs in support of or in opposition to the release of the exhibits.

Through its spokesman, the U.S. Attorney's office said it would take no position on the matter.

How much and what evidence is there?

The U.S. Attorney's office introduced hundreds and hundreds of pieces of evidence in the form of FBI wiretapped phone calls, FBI surveillance photos, photos from other surveillance cameras, contracts, financial documents and charts and graphs that laid out their case.

The more than 130 phone calls played from the 44,000 the FBI recorded phone calls are liberally laced with vulgar and profane language. There were also hundreds of financial documents and contracts, photos and videos from the now-infamous 2008 Las Vegas trip and charts and graphs of the alleged corrupt schemes.

Christman did not file a brief but just before noon, Dimora's attorneys filed their brief.

Read the entire brief in the link on the side. Below, in part, it reads:

"A release of such exhibits will have negative effects on Mr. Dimora's ability to receive a fair trial in an upcoming trial which is pending in this Court. For the following reasons, the Defendant believes that his interests in a fair trial and due process of law outweigh the public and press interest in examining evidence that they have already reported on during the trial coverage."

"The testimony and exhibits have already received extensive coverage. The right of access to a criminal trial stems from both the First Amendment's freedom of the press and the Sixth Amendment's right to a public trial. The First Amendment affords the public and the press the right to be present and the right to speak and publish what takes place at a trial.

"In turn, the Sixth Amendment's right to a public trial is "satisfied by the opportunity of members of the public and the press to attend the trial and report what they have observed."

"However, the Constitution does not provide the public or the press the right of "physical access to tapes and transcripts of what takes place during trial."

"Where the press and the public are provided with uninterrupted access to all proceedings and are permitted to publish the information gleaned, there is no constitutional violation."

"...Thus, the Court must weigh the interests of the parties against the public interest and duty of the Court. The Court further stated that several more factors must be weighed: (1) the court's supervisory powers, (2) the benefit to the public from the incremental gain in knowledge that would result from hearing the tapes, (3) the degree of danger to the defendants or persons on the tapes, (4) "the possibility of improper motives on the part of the media such as promoting public scandal or gratifying public spite," and (5) any special circumstances in the particular case."

"...As the Court knows, the media attention paid to this case has been large. A release of the exhibits will only further exacerbate the pervasive and prejudicial impact of that coverage to Mr. Dimora's right to an impartial jury. Although the media and the public have a right to benefit from a gain in knowledge, the trial exhibits in this case will not provide any substantial gain."

"The media was provided full access to the proceedings during trial. They were even provided with a special room from which they could watch the proceedings and report on the happenings of the trial."

" A release of the exhibits would not create a substantial gain as the media was present for the publication of all of the exhibits. The release of these exhibits creates a large degree of danger to Mr. Dimora. As Mr. Dimora faces a second trial on the same or similar alleged conduct, a release of these exhibits will without a doubt infringe on his ability to obtain a fair trial under the Sixth Amendment."

"As the media will gain access to the information on which the government based its case, they will publish this information directly to the prospective jury pool from which Mr. Dimora's peers will be drawn to decide his fate in the subsequent tria.l"

"..Mr. Dimora's stature as a public official may afford the public a higher degree of scrutiny from the public. However, this scrutiny has already been achieved as the media was present at every proceeding and has reported extensively the proceedings and the evidence they now seek. A dissemination of the trial exhibits will serve only to sensationalize the speculation on Mr. Dimora's culpability with regard to the charges faced"

"Mr. Dimora faces another trial based on the same or similar alleged conduct. This is assuredly a special circumstance that the Court must weigh. This particular circumstance is rare in that Mr. Dimora will face a subsequent prosecution likely based on much of the same evidence that was presented in the current trial. If the media is allowed to disseminate this information to its viewers or subscribers, many of which who will fall in the jury pool, the media will divest Mr. Dimora of his ability to receive a fair trial"

"Based on the weighing of the above factors the court should not permit a release of the trial exhibits to the media. Such an occurrence will harm Mr. Dimora's constitutional rights and in turn will endanger his ability to effectively defend himself in a subsequent trial."

"If the media outlets are allowed to disseminate the exhibits used at trial, Mr. Dimora's ability to receive a fair trial will be non- existent. As the Court will recall, the print media and the local television and radio stations have given extensive coverage to the intercepted phone calls, choosing, as should be expected in most media coverage, to highlight the most sensational. It is not unreasonable to expect that given this amount of attention, most, if not all, audio recordings of intercepted calls will be posted online...."

"As most of the Northern District of Ohio is included in that orbit, the pool from which the potential jurors for the next trial will be drawn will have access to the recordings."

"Finally, since Mr. Dimora's request is only to prohibit the release of the exhibits until after the (second) trial...is completed, the prejudice is substantially limited and the closure is narrowly tailored to protect the interests of Mr. Dimora and the public."

"The media and the public will have access to the exhibits and the general principles protected by access to the exhibits are ultimately safeguarded. Therefore, for the foregoing reasons, Mr. Dimora respectfully requests that the release of exhibits in this case be delayed until after the completion of the (second) trial..."

WKYC-TV

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