Sheila McLaughlin

The Cincinnati Enquirer

CINCINNATI — A firestorm of criticism has erupted in Warren County after defense lawyers discovered that a live feed of their hearings and trials goes directly into Prosecutor David Fornshell's office across the hall.

The revelation came during a recent aggravated murder trial when a defense attorney complained that others were able to hear his confidential conversations with his client because they were being broadcast over a microphone in the courtroom.

The flap has defense attorneys asking judges to put an end to the practice, judges refusing, and the prosecutor saying he's tired of accusations that he did anything improper.

National civil liberties experts say they've never hear of anything like it and court officials in other Ohio counties say it doesn't happen there either.

"My exact term was, 'This is bullshit,' " defense attorney John Kaspar recalled of his reaction to Judge Robert Peeler telling him about the feed to the prosecutor's office during the trial in late July.

Kaspar was defending Michael Watson in the drug-related beating death of Dione Payne of Dayton, who was dropped off at a local hospital.

"In any case that I have, it could compromise the effectiveness of my defense because I don't know what (Fornshell) has heard or not heard," Kaspar said.

Fornshell, a Republican who was appointed prosecutor in 2011 and elected in 2012, said he has the same audio feed that is available in the media rooms that overlook the courtroom, and nothing more. He hasn't heard anything anybody else has been able to hear.

"They are acting like this is some secret surveillance … that they didn't know this audio was in there. This audio has been in (the media room) for a dozen years," Fornshell said.

The audio wasn't available in Fornshell's office until three years ago.

The direct feed — which also goes to the victim advocacy section within the prosecutor's office — has been in place since 2011, when Fornshell asked Judge James Flannery's permission to put a camera with audio in his office.

He wanted to provide an extra viewing area for the trial of Marcus Isreal, who was accused of running over and killing Warren County Sheriff's Sgt. Brian Dulle during a high-speed chase.

Flannery agreed and allowed him to keep it running as long as none of the video was recorded. Since then, Fornshell has gained access to proceedings in all three courtrooms, although there is no audio available to the newer system in Peeler's courtroom right now.

Fornshell said the judges dictated where the cameras should be placed in their courtrooms and have allowed most of their staffs to have access to Fornshell's system.

Fornshell said he's probably watched five trials in three years from his office.

Peeler, who is presiding judge, said the three common pleas judges met Wednesday and decided that Fornshell could continue to watch proceedings from his office.

"I think this is much ado about nothing," Peeler said. "I approach everything with the concept that we have an open court. We have to be very careful that there is no infringement on the attorney-client privilege or privileged conversations. I have no reason to suspect that anyone is violating that."

Flannery said there's no reason to stop allowing the prosecutor to watch the proceedings from his office because there's no proof that he's abusing the system. Signs on the defense table warn attorneys to mute the microphone when talking to their clients, he said.

Judges were under no obligation to tell attorneys about Fornshell's cameras; it was up to attorneys to ask about them, Flannery said.

"There's nothing wrong with the system. There's just the perception that the prosecutor is getting special privileges. He is not getting special privileges," he said.

Kaspar questioned how the judges can monitor the access to make sure it is not abused.

"The judicial branch is supposed to be the check and balance for the executive branch. Yet we don't know the extent to which the prosecutor can hear our conversations, see our documents and what have you," Kaspar said.

Kaspar began spreading the word to other attorneys this week, prompting a letter to judges from longtime defense lawyer Charlie Rittgers. He asked the judges to stop the practice.

Rittgers, who declined comment to The Enquirer, told the judges the prosecutor's cameras were an invasion of privacy, an invasion of attorney-client privilege and an invasion of a criminal defendant's Sixth Amendment right to effective assistance of counsel.

"I am not accusing anyone of any wrongdoing but I am respectfully asking that the audio/visual feed leading to the Prosecutor's Office be terminated and that the Court be very judicious in how the microphones and any other cameras are used in our courtrooms," Rittgers said in his letter dated Monday.

Kaspar said he expects the topic to be discussed at the Warren County Bar Association meeting Aug. 28 to determine what action may be taken.

Gary Daniels, spokesman for the American Civil Liberties Union (ACLU), said giving the prosecutor audio/visual access to court proceedings is rife with problems.

The ACLU has sanctioned the Ohio Supreme Court's public access to hearings online, which are available to anyone online.

"Everybody knows it's there and it helps shine light on the judicial process. The ACLU sees that as a good thing," Daniels said.

"The judges in court have allowed this to happen with apparently almost no oversight as to how the prosecutors are using these cameras, using the information that is gleaned by what is basically surveillance. There are no regulations. It's very much a 'Wild West'-type atmosphere."

He said judges are supposed to be neutral in the court system, and allowing the prosecutor to set up his equipment to watch from his office shows favoritism.

"When you allow one party to the proceedings to have a direct feed ... it provides a tremendous advantage," Daniels said.

Chad Schmucker, president of the National Judicial College, which trains judges, said the practice raises some "troubling" ethical and fairness issues.

He said judges should at least post a notice that the courtroom is being monitored by the prosecutor's office.

Defense attorneys with their clients and others who are in the courtroom alone before or after a hearing have an assumption of privacy.

"If there was notice, it's a good idea," said Schmucker, who was a judge for 20 years. "You want people to know what is going on in the courtroom. But perhaps they hadn't thought through all the issues."