Local attorneys who have accused the county prosecutor of improperly using recording technology located in courtrooms say they want the practice stopped immediately.
The buzz among the defense bar began three weeks ago during the murder trial of Michael “Jay” Watson.
“The family of my client said they could hear everything that I was saying to Jay at the defense table,” defense attorney John Kaspar said. That is when Kaspar said he learned about a video feed that can be viewed by the prosecutor in his office.
Cameras, funded by the prosecutor’s office, allow Warren County Prosecutor David Fornshell to view and to hear activities in at least two courtrooms, even when court is not in session.
“This raises all sorts of issues — attorney/client privilege and separation of witnesses who could be listening to the trial in the prosecutor’s office,” Kaspar said.
According to Fornshell, the cameras were installed with the blessing of the three Common Pleas Judges, and the feed to his office is the same audio feed that goes to the media rooms that overlook each courtroom.
“This is the same audio feed that the media is hearing,” Fornshell said. “To suggest I not have the exact same audio feed the media receives is nonsensical.”
But Kaspar claims that confidential conversations he was having with Watson during the trial were broadcast over the courtroom’s microphone.
“The family of my client said they could hear everything that I was saying to Jay at the defense table,” Kaspar said. That is when he said he learned about the feed into the prosecutor’s office.
According to Judge James Flannery, attorneys are able to kill an audio feed when they are talking with their clients.
“There are signs right there on counsel tables to press and it will mute the sound,” he said.
Lebanon attorney Charles H. Rittgers sent a letter to the three Common Pleas Judges — Donald Oda II, James Flannery and Robert Peeler — on Monday after learning of the cameras.
Rittgers and Kaspar, along with attorney Greg Howard, who are all preparing for a capital murder trial next month, say the practice needs to stop immediately.
“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 microphones and other cameras are used in our courtrooms,” Rittgers said in the letter obtained by this newspaper.
Chris Link, executive director of the ACLU of Ohio said the office has received calls about the courtroom cameras since the issue was raised. She called it “a little creepy.”
But Link added the real point to the issue is the defense didn’t know about the cameras.
“Transparency and notice is the key,” she said. Judges should have an official order in place for outlining usage of the cameras and all attorneys should know about them, she said.
Link said the practice “does not give the appearance of justice … but if everyone is given the same notice and information they will all feel they are getting a fair deal.”
Fornshell said while he, as well as others, can move the cameras, “I can not zoom in on anything.”
The settings can be changed to different angles, including showing both the defense and prosecution tables, Fornshell said.
“The settings were agreed to by facilities management and the judges,” Fornshell said. “Because I didn’t want anybody to accuse me or my staff of lip reading or zooming in on notes at the defense table.”
The first camera was installed in 2011 during the trial of Marcus Isreal, who struck and killed Warren County Sheriff’s Sgt. Brian Dulle.
Expecting a “substantial number of people” coming to view the trial, Fornshell said he approached Judge James Flannery about installing cameras with an audio feed in Flannery’s courtroom.
“The purpose was to turn my private office into an extra viewing area for the trial,” Fornshell said in a letter to the three Common Pleas judges denying any abuse of the cameras.
Cincinnati attorney Clyde Bennett, who represented Isreal, said he does not believe Fornshell is doing anything wrong.
“It is not a concern for me at all,” Bennett said. “I don’t think that I have a right to privacy with my client in a public courtroom, ever.”
He added that Fornshell has integrity and the camera feed is a way for him to have eyes in the courtroom just the same as if he were sitting at the prosecution table.
After the Israel trial, Fornshell said he realized how useful the cameras were because he was able to watch portions of hearings or trials directly from his desk while working on other matters. Fornshell said he has also used video footage to analyze the performance of his assistant prosecutors.
Fornshell told this newspaper that he accesses the system only about once a month.
Fornshell said cameras were then installed, with the approval of the judges, in all courtrooms and the feed to his office was hooked up to the same audio feed that went to the media rooms. Judges and staff also were given access to view the feeds, he said.
With the exception of one courtroom, where the audio feed did not work, Fornshell has been able to log in and view and hear proceedings in all courtrooms since about November of 2011.
Kaspar and other attorneys also have concerns that the current feeds are “hot” at all times even when the court is not in session.
“It just doesn’t seem right,” Howard said, noting he has talked to clients in the courtroom after a hearing without knowing he could be heard.
Howard said he doesn’t want the prosecutor’s cameras operating during his upcoming trial.
“I am not accusing anyone of anything, but I just don’t know for sure that they are looking at,” Howard said.
Rittgers said he had “not an inkling” about the prosecutor’s feed.
“It is alarming to me that no one advised us about it,” Rittgers said. “This is supposed to be a level playing field. If the prosecutor has it, the defense attorneys should have the same opportunity.”
Thank you for reading the Dayton Daily News and for supporting local journalism. Subscribers: log in for access to exclusive deals and newsletters.
Thank you for supporting in-depth local journalism with your subscription to the Dayton Daily News. Get more news when you want it with email newsletters just for subscribers. Sign up here.