[Cite as State ex rel. Cincinnati Enquirer v. Ghiz, 2017-Ohio-8965.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO EX. REL. THE 

CINCINNATI ENQUIRER, 

STATE OF OHIO EX REL. THE 

ASSOCIATED PRESS, 

STATE OF OHIO EX REL. RAYCOM 

MEDIA, d.b.a. WXIX-TV, 

STATE OF OHIO EX REL. 

OHIO/OKLAHOMA HEARST 

TELEVISION INC., d.b.a. WLWT-TV, 

STATE OF OHIO EX REL. SINCLAIR 

MEDIA III, INC., d.b.a. WKRC-TV, 

STATE OF OHIO EX REL. 

CINCINNATI PUBLIC RADIO, d.b.a. 

WVXU, 

 and 

STATE OF OHIO EX REL. SCRIPPS 

MEDIA INC., d.b.a. WCPO-TV, 

 Relators, 

 vs. 

HON. LESLIE E. GHIZ, JUDGE, 

HAMILTON COUNTY COURT OF 

COMMON PLEAS,

 Respondent. 

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CASE NOS. C-170268 

 C-170269 

O P I N I O N.
3 

Original Action in Prohibition and Mandamus 

 

Judgment of Court: Writ of Prohibition Dismissed; Writ of Mandamus Granted in 

 Part and Denied in Part 

Date of Judgment Entry on Appeal: December 13, 2017 

Graydon Head & Ritchey LLP, John C. Greiner and Darren W. Ford, for Relators 

State of Ohio ex rel. The Cincinnati Enquirer, State of Ohio ex rel. The Associated 

Press, State of Ohio ex rel. Raycom Media, d.b.a. WXIX-TV, State of Ohio ex rel. 

Ohio/Oklahoma Hearst Television Inc., d.b.a. WLWT-TV, State of Ohio ex rel. 

Sinclair Media III Inc., d.b.a. WKRC-TV, State of Ohio ex rel. Cincinnati Public 

Radio, d.b.a. WVXU, 

Frost Brown Todd, LLC, Monica L. Dias and Susan Grogan Faller, for Relator State 

of Ohio ex rel. Scripps Media Inc., d.b.a. WCPO-TV, 

 

Isaac Wiles Burkholder & Teetor, LLC, Mark Landes, Mark R. Weaver and Holly E. 

Oak, for Respondent. 

 
4 

MOCK, Presiding Judge. 

{¶1} On July 19, 2015, University of Cincinnati Police Officer Raymond 

Tensing initiated a traffic stop of Samuel DuBose. During the course of the 

encounter, Tensing discharged his firearm, killing DuBose. Ten days later, a 

Hamilton County grand jury issued a two-count indictment, charging Tensing with 

murder and voluntary manslaughter. Amid significant local, national, and global 

media coverage, the case proceeded to trial beginning on October 31, 2016. The trial 

proceeded to jury deliberation until, on November 12, the jury announced it was 

hopelessly deadlocked and the trial judge declared a mistrial. 

{¶2} On December 7, 2016, the case was transferred to Respondent Leslie 

E. Ghiz (“Respondent”), Judge of the Hamilton County Court of Common Pleas for a 

second trial. Prior to the trial commencing, Respondent put on an entry which 

limited media coverage of the proceedings. Respondent also refused to release the 

questionnaires that had been completed by prospective jurors in the case. As a result 

of that entry, several media outlets filed complaints in this court seeking a writ of 

prohibition to prevent Respondent from enforcing the restrictions. This court 

granted an alternate writ, preventing Respondent from enforcing the order, holding 

that “[i]n the absence of an evidentiary hearing and particularized findings, the 

restrictions imposed by the Respondent are contrary to law.” In light of this court’s 

ruling, Respondent vacated her original order. This court then dismissed the 

petitions as moot. 

{¶3} Pursuant to the mandate from this court, Respondent conducted a 

hearing on the matter on June 1, 2017. During the hearing, Respondent heard 

testimony from three individuals. The first individual had been the courtroom bailiff 

during the first Tensing trial. He testified to the contents of an affidavit he had 
5 

prepared in which he averred that some of the jurors during the first trial had 

expressed discomfort at being publically identified as jurors. A deputy testified that 

she had observed, on courthouse surveillance video, two individuals who appeared to 

be photographing individuals outside the main entrance of the courthouse on the 

first day of jury selection. Another deputy testified about the security measures 

taken during the first Tensing trial, including the restrictions put in place for the use 

of electronic devices in the area around the courtroom. Respondent also reviewed 

the completed juror questionnaires. Of the 180 completed forms, the court found 

that 38 individuals had said that they would not be willing to serve if their identities 

became known publically, and 39 individuals said they would be “concerned about 

their personal safety, reputation or standing in their community among family, 

friends and associates” should they be asked to serve on the jury. 

{¶4} Respondent also took judicial notice of other matters. For example, 

she took judicial notice of the fact that she had presided over another criminal trial in 

which an associate of that defendant had used social media to try and locate jurors. 

She also took judicial notice of two separate instances involving cellular devices in 

pretrial hearings: one in which a prospective juror’s phone rang during a proceeding 

because he or she had forgotten to silence it, and another in which a spectator had 

dropped a phone during a hearing while testimony was being taken, “causing a 

distraction.” She also took “judicial notice” that “certain interactions between police 

officers and African American citizens wherein deadly force was used or death 

otherwise resulted have found their way into criminal courtrooms and some judicial 

outcomes have led to massive public outcry and even serious violence against 

persons,” but she determined that she “need not list or detail [the] incidents seen in 

America over the last few years.” 
6 

{¶5} As a result of the hearings, and the other information of which she 

had taken judicial notice, Respondent issued two separate decisions on court and 

information access. First, she signed an entry in which she denied the request for 

release of the questionnaires completed by the serving and prospective jurors until 

after the trial had concluded. Upon the conclusion of the trial, Respondent indicated 

that the questionnaires would be released, with personally-identifying information 

redacted. 

{¶6} Respondent later issued a separate decision in which she severely 

restricted media access to the proceedings. The restrictions included limiting access 

to the courtroom to four randomly selected members of the media—regardless of the 

amount of seating that would otherwise be available to the general public; forbidding 

the use of electronic devices in the courtroom by anyone other than attorneys or 

court personnel; forbidding the use of electronic devices on the fifth floor of the 

courthouse (the floor on which the trial was proceeding) except by attorneys, court 

personnel, or media representatives in a specifically-designated media room; 

forbidding photographing or video recording of jurors or prospective jurors; and 

limiting media to using a single, shared camera with a video and audio feed that 

would be available for the use of all, would be broadcast to the media room and 

would be available for livestreaming on the internet or recording for later use. 

{¶7} Relators filed complaints with this court, petitioning the court for 

writs of prohibition and mandamus. Relators seek a writ of mandamus to compel 

Respondent to release the unredacted jury questionnaires. They seek a writ of 

prohibition prohibiting her from enforcing the restrictions put in place on the 

media’s access to the trial proceedings. After the initial pleadings were submitted, 
7 

Relators filed a motion for summary judgment, claiming they are entitled to relief as 

a matter of law. 

The Writ of Mandamus 

{¶8} To be entitled to a writ of mandamus, a relator must establish (1) a 

clear legal right to the relief sought, (2) a clear legal duty on the part of the 

respondent to perform the requested act, and (3) the lack of an adequate remedy in 

the ordinary course of law. State ex rel. Scott v. Franklin Cty. Bd. of Elections, 139 

Ohio St.3d 171, 2014-Ohio-1685, 10 N.E.3d 697, ¶ 14. These requirements must be 

proved by clear and convincing evidence. Id. “Mandamus is the appropriate vehicle 

to compel disclosure of specific records requested under the Ohio Public Records Act 

and the Ohio and United States Constitutions.” State ex rel. Beacon Journal 

Publishing Co. v. Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, ¶ 50, 

citing State ex rel. News Herald v. Ottawa Cty. Court of Common Pleas, 77 Ohio 

St.3d 40, 45, 671 N.E.2d 5 (1996). 

{¶9} The right to access completed juror questionnaires arises from the 

Free Speech and Free Press Clauses of the First Amendment to the United States 

Constitution, together with the analogous provision of Article I, Section 11 of the 

Ohio Constitution and the “open courts” provision of Article I, Section 16 of the Ohio 

Constitution. See Bond at ¶ 19. The public has a presumptive right to access during 

voir dire proceedings. Bond at ¶ 18, citing Press-Ent. Co. v. Superior Court of 

California for Riverside Cty., 464 U.S. 501, 508-510, 104 S.Ct. 819, 78 L.Ed.2d 629 

(1984). This same presumption of access applies to the answers given to written 

questions, because “[t]he fact that the questioning of jurors was largely done in 

written form rather than orally is of no constitutional import.” Bond at ¶ 19, quoting 
8 

Copley Press, Inc. v. Superior Court, 228 Cal.App.3d 77, 89, 278 Cal.Rptr. 443 

(1991). As the Bond court noted: 

the purpose behind juror questionnaires is merely to expedite the 

examination of prospective jurors, it follows that such questionnaires 

are part of the voir dire process. The fact that a lawyer elicits juror 

responses from written questions rather than oral questions has no 

bearing on whether the responses are considered in accepting or 

rejecting a juror. 

Bond at ¶ 18. 

{¶10} But the right of access to the voir dire proceedings is not absolute. 

The First Amendment right creating a presumption of openness may be overcome 

“by an overriding interest based on findings that closure is essential to preserve 

higher values and is narrowly tailored to serve that interest.” Bond at ¶ 17, quoting 

Press-Ent., 464 U.S. at 508, 104 S.Ct. 819, 78 L.Ed.2d 629. Additionally, identifying 

information such as Social Security numbers, telephone numbers, and driver’s 

license numbers should be redacted because they are not properly part of the voir 

dire process. Bond at ¶ 25. 

{¶11} At its core, the problem in this case is that Respondent failed to 

conduct an inquiry on the issue in accordance with the procedure outlined in Bond. 

The court instructed trial judges to “inform prospective jurors of their right to 

request an in-camera hearing, on the record and with counsel present, regarding any 

written question during the voir dire process.” Bond, 98 Ohio St.3d 146, 2002-Ohio7117, 781 N.E.2d 180, at ¶ 22, citing Press-Ent., 464 U.S. at 513, 104 S.Ct. 819, 78 

L.Ed.2d 629. If an individual juror has a concern about the disclosure of information 

on the form, the trial judge should then “make a determination on the record as to 
9 

whether a prospective juror has a legitimate privacy interest to warrant the 

nondisclosure of a response.” Id. This individual questioning could begin with the 

12 jurors selected as the prospective jury before the parties commence their 

challenges, and could be guided by the jurors’ responses in the questionnaires. The 

Bond court concluded that “[i]f the trial judge finds a valid basis for nondisclosure, 

the judge should notify the prospective juror of his or her right to refrain from 

answering the question on the questionnaire form and should seal the hearing 

transcript.” 

{¶12} Respondent did not inquire of the individual jurors about their ability 

or willingness to serve if the questionnaire information was released to the public. 

She did not even voir dire those who indicated that it would. Had this occurred, the 

trial court would have had several options available, including, but not limited to, 

redacting information on individual questionnaires, redacting certain information on 

all questionnaires, withholding disclosure of the questionnaires until the conclusion 

of the trial, and excusing for cause jurors who were so sensitive to their service 

becoming known that they could not serve effectively. The Bond court recognized 

that each case would provide its own challenges, stating that “we defer to trial courts 

to establish the manner in which prospective jurors may request an in-camera 

hearing when completing juror questionnaires.” Bond at ¶ 24. But some form of 

individual engagement with the jurors must occur to create a record sufficient to 

justify withholding information from the public. 

{¶13} And the failure to engage in this inquiry has significantly limited the 

value of the evidence that is present in the record. For example, Respondent noted 

that there were 38 responses indicating an unwillingness to serve if identities became 

known publically, and 39 responses indicating concern about “personal safety, 
10 

reputation or standing in their community among family, friends and associates.” 22 

of the respondents answered “yes” to both questions. But we have no information 

from the individual jurors to flesh out the bases for their concerns. And while 

Respondent made several observations about what had occurred in the previous 

litigation of the Tensing charges, in other cases over which she had presided, and in 

other cases involving the use of deadly force by law enforcement across the nation, 

the lack of a voir dire significantly limited evidence connecting this information to 

these jurors and this case. 

{¶14} On this record, Respondent made insufficient findings to support her 

decision to withhold the completed juror questionnaires in their entirety from public 

disclosure. In fact, the findings she made only addressed the nondisclosure of 

identifying information, including the names and addresses of the jurors. Therefore, 

Relators have clearly met their burden to demonstrate that they are entitled to the 

release of information other than identifying information. 

{¶15} The issue that remains for us to decide is whether juror-identifying 

information must also be disclosed. First, we note that the Bond court specifically 

held that Social Security numbers, driver’s license numbers, and telephone numbers 

should be redacted. But the court considered the issue of disclosing names and 

addresses separately. See Bond, 98 Ohio St.3d 146, 2002-Ohio-7117, 781 N.E.2d 180, 

at ¶ 34-47. The court concluded that “the First Amendment qualified right to access 

extends to juror names and addresses.” (Emphasis added.) Id. Such a qualified right 

creates a “presumption of openness” requiring disclosure—a presumption that can 

only be overcome with a demonstration of “an overriding interest based on findings 

that closure is essential to preserve higher values and is narrowly tailored to serve 
11 

that interest.” Bond at 159, quoting Press-Ent., 464 U.S. at 510, 104 S.Ct. 819, 78 

L.Ed.2d 629. 

{¶16} In Bond, the court concluded that the names and addresses should 

have been disclosed. But the court made that determination because “the trial court 

failed to articulate particularized findings [necessitating] the total suppression of 

juror names and addresses.” Bond at 159. In this case, we conclude that Relators 

demonstrated that they had a qualified right to access the information that created a 

presumption of openness, but Respondent’s findings were sufficient to overcome 

that presumption. The trial court made findings that support the conclusion that 

there may be a risk to the jurors in the case that exceeds the risk borne generally by 

jurors who serve in criminal trials, and those findings were sufficient to rebut the 

presumption of openness as to the jurors’ names and addresses. 

{¶17} Along with names and addresses, and for the same reason, we further 

conclude that the redaction of the identity of a juror’s current employer is 

appropriate in cases where the juror is self-employed or works for a company or 

organization that is so small that the release of the name of the employer would be 

tantamount to identifying the juror. 

{¶18} Concededly this is a close case. It was perhaps made needlessly close 

by the fact that Respondent failed to conduct a proper and complete Bond hearing in 

accordance with our prior order. But we conclude that the findings made by the trial 

court were sufficient, if only barely. Respondent should have released the redacted 

questionnaires immediately after conducting the hearing on the issue and before the 

trial commenced. For these reasons, we issue a limited writ of mandamus 

compelling Respondent to release the completed questionnaires after first redacting 

personal identifying information such as names, addresses, Social Security numbers, 
12 

telephone numbers, driver’s license numbers, and current employers if listing the 

employer would be tantamount to identifying the individual juror. 

Writ of Prohibition 

{¶19} Relators also seek a writ of prohibition to compel the trial court to 

rescind its restrictions on courtroom access. A writ of prohibition is a preventive 

measure that “is designed to prevent a tribunal from proceeding in a matter which it 

is not authorized to hear and determine.” State ex rel. Stefanick v. Marietta Mun. 

Court, 21 Ohio St.2d 102, 104, 255 N.E.2d 634 (1970); see State ex rel. Jones v. 

Suster, 84 Ohio St.3d 70, 73, 701 N.E.2d 1002 (1998). To prevail in this case, 

Relators must establish that (1) the trial court is about to exercise judicial power, (2) 

the exercise of that power is unauthorized by law, and (3) denying the writ will result 

in injury for which no other adequate remedy at law exists. State ex rel. Douglas v. 

Burlew, 106 Ohio St.3d 180, 2005-Ohio-4382, 833 N.E.2d 293, ¶ 9; State ex rel. 

White v. Junkin, 80 Ohio St.3d 335, 336, 686 N.E.2d 267 (1997). 

{¶20} We conclude that the petition is moot. The trial has concluded, the 

indictments have been dismissed, and the applicable restrictions are no longer in 

place. The dissent would have this court address this issue by invoking the seldomused authority to decide questions that are “capable of repetition, yet evading 

review.” While the question involves conduct that is too short in duration to be fully 

litigated prior to its cessation, we do not have a reasonable expectation that the same 

complaining party will be subjected to the same action again. See State ex rel. 

Cincinnati Enquirer v. Ronan, 124 Ohio St.3d 17, 2009-Ohio-5947, 918 N.E.2d 515, ¶ 

5, citing State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 729 

N.E.2d 1182 (2000). The case over which Respondent presided was singular in 

terms of its subject matter and media attention. The possibility of a case of this 
13 

nature and magnitude is far too unlikely to recur for this court to pursue this 

extraordinary exercise of jurisdiction. 

Conclusion 

{¶21} We issue a limited writ of mandamus to compel the trial court to 

release the completed juror questionnaires of all 18o potential jurors after redacting 

identifying information such as names, addresses, Social Security numbers, 

telephone numbers, driver’s license numbers, and places of employment where 

appropriate. We dismiss the petition for the writ of prohibition as moot. 

Judgment accordingly. 

DETERS, J., concurs. 

ZAYAS, J., concurs in part and dissents in part. 

ZAYAS, J., concurring in part and dissenting in part. 

{¶22} I concur with the majority’s holding regarding the petition for a writ 

of mandamus. However, I respectfully dissent from the majority’s conclusion that 

the petition for a writ of prohibition is moot. While the cause is technically moot, 

there is a recognized exception to the mootness doctrine for cases that are “capable 

of repetition, yet evading review,” and it is within our authority to raise the 

applicability of this exception sua sponte. See State ex rel. Cincinnati Enquirer v. 

Bronson, 191 Ohio App.3d 160, 2010-Ohio-5315, 945 N.E.2d 551, ¶ 8 (12th Dist.). To 

meet this exception, the following conditions must apply: “(1) the challenged action 

is too short in duration to be fully litigated prior to its cessation or expiration and (2) 

there is ‘a reasonable expectation that the same complaining party will be subjected 

to the same action again.’ ” Paige v. Ohio High School Athletic Assn., 2013-Ohio-
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4713, 999 N.E.2d 1211, ¶ 17 (1st Dist.), quoting State ex rel. Calvary v. Upper 

Arlington, 89 Ohio St.3d 229, 231, 729 N.E.2d 1182 (2000). 

{¶23} The first element is met here because a criminal trial’s duration is 

almost always much shorter than this court’s typical period of review. See Press-Ent. 

Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 6, 106 S.Ct. 2735, 

92 L.Ed.2d 1 (1986) (“It can reasonably be assumed that * * *, because criminal 

proceedings are typically of short duration, such an order will likely evade review.”); 

State ex rel. Dispatch Printing Co. v. Louden, 91 Ohio St.3d 61, 64, 741 N.E.2d 517 

(2001) (“[A] closure order usually expires before an appellate court can consider 

it[.]”); State ex rel. Dispatch Printing v. Geer, 114 Ohio St.3d 511, 2007-Ohio-4643, 

873 N.E.2d 314, ¶ 11 (noting that an order prohibiting a newspaper from taking 

photographs of a juvenile’s face during a plea hearing was, “[l]ike more typical 

orders[,] * * * too brief in its duration to be fully litigated before the plea hearing 

concluded.”); State ex rel. Cincinnati Enquirer v. Ohio Dept. of Pub. Safety, 148 

Ohio St.3d 433, 2016-Ohio-7987, 71 N.E.3d 258, ¶ 30 (noting that the “short 

duration of * * * criminal proceedings”—less than two months between the suspect’s 

arrest and guilty plea—“truncated the Enquirer’s ability to fully litigate its mandamus 

claim before us”). 

{¶24} In the case at hand, it was a mere three weeks between the beginning 

of voir dire and the trial’s end. 

{¶25} The second element is met because essentially every media company 

in Cincinnati is a petitioner in this case, and there is a “reasonable expectation” that 

a trial court will issue a substantially similar order restricting the activities of these 

media companies in a future high-profile criminal trial. See Bronson at ¶ 3-4, 7-8 

(holding that there was “a reasonable expectation that the same complaining party 
15 

will be subject to the same action again” where the judge had restricted a 

newspaper’s access to the jury view of the crime scene in a high-profile murder trial); 

Ohio Dept. of Public Safety at ¶ 31 (holding that case was not moot because, 

“[w]ithout resolution of the questions at issue here, we can reasonably expect the 

Enquirer and other media outlets to continue to request dash-cam recordings and 

law-enforcement agencies to continue to withhold them.”); Press-Ent., 478 U.S. at 6, 

106 S.Ct. 2735, 92 L.Ed.2d 1 (holding that case was not moot because “[i]t can 

reasonably be assumed that petitioner will be subjected to a similar closure order.”). 

{¶26} For example, part of the relief sought in WCPO’s petition was a writ 

prohibiting respondent from “forbidding WCPO from broadcasting, televising, 

photographing, or recording jurors or prospective jurors.” Since the “filming, videotaping, recording or taking photographs of jurors” is prohibited “in any 

circumstance” by Hamilton County Court of Common Pleas Rule 30(F), there is, at 

the very least, a “reasonable expectation” that WCPO would again be prohibited from 

“broadcasting, televising, photographing, or recording jurors.” See, e.g., Geer, 114 

Ohio St.3d 511, 2007-Ohio-4643, 873 N.E.2d 314, at ¶ 12 (finding a “reasonable 

expectation that the judge will subject the Dispatch to comparable orders in the 

future” where the judge “maintain[ed] that his order ‘was specifically authorized’ by 

Sup.R. 12.”). 

{¶27} Therefore, the exception to the mootness doctrine should be applied 

here, and this court should proceed to rule on the merits of the petition for a writ of 

prohibition because the issues are “capable of repetition, yet evading revew.” 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.