McAuley, Matter of
| Decision Date | 12 April 1979 |
| Docket Number | No. 39950,39950 |
| Citation | 408 N.E.2d 697,63 Ohio App.2d 5 |
| Parties | , 17 O.O.3d 222 In the Matter of Proceedings to Compel Robert J. McAULEY as a witness in a criminal proceeding in California. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. R.C. 2939.25-.29 provides a means of effecting the attendance of a material and necessary witness in a criminal trial in another state. It applies to all witnesses who are considered material and necessary, regardless of their status.
While the certificate of materiality presented by the out-of-state court is prima facie evidence of all the facts stated therein, the ultimate determination of whether a person is a material and necessary witness will be made at a hearing in a court in the state where the witness resides, at which the party seeking the witness has the burden of proving that he is a necessary and material witness.
2. Newspersons neither have an absolute First Amendment right nor an absolute statutory right under the shield law, R.C. 2739.12, to withhold the names of confidential sources of information in criminal proceedings, whether before a grand jury, during pre-trial discovery, or at trial. A newsperson's right to protect the confidentiality of his confidential sources is a qualified right. Also, defendants do not have an absolute right to obtain the confidential source of a newsperson's information. In determining whether a newsperson must divulge the name of a confidential source of information in a criminal proceeding, a court must balance the newsperson's First Amendment right against the defendant's Sixth Amendment right to a fair trial on a case-by-case basis.
3. Before a defendant in a criminal proceeding is entitled to either a newsperson's confidential information or his confidential source, the defendant must first demonstrate to the court that either the newsperson or the confidential source has relevant evidence regarding the defendant's guilt or innocence. The defendant must show that he has exhausted all available means of obtaining the confidential information requested of the newsperson. Further, the defendant must make an effort to examine the newsperson concerning his nonconfidential information and must request an in camera inspection by the court of the newsperson's confidential information. If, after these steps are taken, there is direct evidence and reasonable inferences flowing therefrom that there is a reasonable probability that the newsperson or the confidential source will provide relevant evidence of the defendant's guilt or innocence, the defendant is entitled to either the newsperson's confidential information or the name of his confidential source.
The foregoing test also applies where a defendant in criminal proceedings, pursuant to R.C. 2939.26, seeks to have a newsperson declared a material and necessary witness for the purpose of obtaining confidential information or the confidential source of his information.
Barry Tarlow, Los Angeles, Cal., and Paul D. Cassidy, Columbus, for appellant John Monica.
Donald A. Burns, Cleveland, for appellee Robert J. McAuley.
This case involves the classical confrontation between a newsperson who contends he has an absolute, or at least a qualified, First Amendment right not to reveal confidential sources of information, and a defendant who contends that such information is essential to his right to a fair trial as provided by the Sixth Amendment to the United States Constitution.
One Julius Petro was shot and killed in Los Angeles, California, in January 1969, by one Raymond W. Ferritto who admitted the killing and stated that it was ordered by one John Monica. John Monica was then charged with ordering Ferritto to kill Julius Petro.
On January 19, 1978, the Cleveland Plain Dealer carried a news story, under the by-lines of Robert J. McAuley and Jim Strang, stating that Raymond W. Ferritto, who was the admitted bomb slayer of racketeer Daniel J. (Danny) Greene, had told law enforcement authorities in California that he was hired to kill another Cleveland gangster, Julius Anthony Petro. Petro's dead body was found in a parked car at Los Angeles International Airport on January 12, 1969. The article then reviewed Petro's past criminal activities and further stated that:
Attorneys for John Monica, desirous of having McAuley appear for questioning in Los Angeles as a material witness, filed a request for a Certificate of Materiality and Necessity for an Out-of-State Witness, pursuant to California Penal Code § 1334.3. In the request, the appellant asserted that he did not order the murder of Julius Petro; that the murder may have been ordered by Mafia chieftains; and that he is not a Mafia chieftain and has never been a member of the Mafia. Further, appellant stated that the information in the possession of Robert J. McAuley, his testimony, notes and records, the names and addresses of the persons who gave him information and all material which formed the basis of the article are clearly relevant to enable the defense to prepare for the preliminary hearing, investigate the case, establish the appellant's innocence at the preliminary hearing, and prove that Mafia chieftains rather than appellant, killed Julius Petro. Based on the foregoing, it was asserted that Robert J. McAuley is a necessary and material witness in the case as he possesses information that is helpful and essential to the defense and clearly exculpatory of the defendant.
It is further contended that the information in the possession of McAuley concerning the meeting between Mafia figures after Petro's death is relevant because it will help establish that these Mafia figures, and not John Monica ordered Petro's death. Counsel for Monica also contends that McAuley's testimony is necessary at an informant disclosure hearing where he can testify about the information related by the informant to the police and thus lay a foundation for disclosure of the informant. Further, it is asserted that even if the informant's name is not revealed, McAuley would be able to identify the police officer who received the information from the informant, and then the police officer could be called upon for information about the informant. The request further states that Robert McAuley has refused to come to California without a subpoena or to furnish the name of the source of the information over the telephone. Defendant contends he has no other way of acquiring the material except through a subpoena directed to Robert McAuley. It is requested that McAuley appear and bring with him (a) all written reports, raw notes, memorandums, tape recordings, etc., concerning information about the death of Julius Petro; (b) the names, addresses and telephone numbers of all persons who gave information to Robert J. McAuley and Jim Strang about the death of Julius Petro; (c) all information, including reports, notes, tape recordings, etc., concerning a meeting between Ferritto, Fratianno, and other crime figures shortly after Petro was slain; (d) the names, addresses and telephone numbers of all persons who gave information to Robert J. McAuley and Jim Strang about a meeting between Ferritto, Fratianno and other crime figures shortly after Petro was slain.
In addition to the request for a Certificate of Materiality and Necessity for an Out-of-State Witness, a declaration in support of the request for certification was filed by Richard Fannan, one of Monica's attorneys. Fannan stated that he had extensive discussions with John Monica and other persons familiar with organized crime activities in California, and on the basis of these conversations, he believes that John Monica is not now, and has never been, a Mafia chieftain, has never been alleged to be a Mafia chieftain, and is not now and has never been a member of the Mafia. Fannan contended that he had spoken to Mr. McAuley and Mr. Strang; that both reporters confirmed that the information contained in the article is true; that Strang informed him that the information about Petro's death was provided by McAuley through his sources; and that both McAuley and Strang refuse to voluntarily disclose the identity of the source.
The remainder of Mr. Fannan's declaration is cumulative of the material that appeared in the certificate filed with the court. The gist of Mr. Fannan's declaration is that the information about the meeting between the crime figures shortly after Petro's death is relevant since it will most likely establish that the persons who organized and attended the meeting ordered Petro's murder and that discovery of the informant's name is essential in order to obtain information concerning Petro's death.
On September 8, 1978, Judge Trammell of the Los Angeles Municipal Court issued a Certificate of Materiality and Necessity for an Out-of-State Witness. The certificate stated that Robert J. McAuley is a necessary and material witness and that an appearance in California would not be an undue hardship for McAuley. The certificate contained a request that the Court of Common Pleas of Cuyahoga County issue its subpoena to Mr. McAuley directing him to appear on ...
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