Something odd is happening in Cincinnati. A legal system often decried for its "penchant for cussedness"1 is freely allowing criminal defendants who have been acquitted to have their trial records sealed.2Although the slate is not wiped clean, public access is strictly verboten.3The volume of sealed documents has grown so dramatically that the Hamilton County Clerk's office is now contemplating a separate warehouse to store them. The acquitted are even becoming brazen in their demands-one even asking that his name be deleted from the trial transcript of his convicted co-defendant.4
The trial courts' willingness to seal their own records at the behest of the acquitted would be remarkable even in the ordinary case, but it extends as well to highly publicized trials-trials, even, that have been televised nationally on Court TV. The spirit of self-denial raging through the courthouse reached its zenith, or nadir, in the recent case of State v. Roach,5 in which a Cincinnati police officer was accused of negligentlyPage 2 shooting to death a young, unarmed African-American fleeing from arrest.6The shooting received national attention, caused angry race riots downtown, inspired a Justice Department investigation and a separate class action that resulted in a collaborative agreement between the city and its police force, and is still the rallying point of an ongoing African-Americanled boycott of the city.7 Despite the enormous public interest, the trial court, after acquitting the officer of all charges, enthusiastically granted the officer's request that the trial record be sealed.8 A team of historians encamping today at the Hamilton County Courthouse to study the trial would find no record of it, not even its mention in the court index.9 If they were to try to speak to the investigating officers, the officers would be required by law to decline comment.10 If the officers did choose to discuss the case, they could be prosecuted for a fourth-degree misdemeanor,11punishable by up to thirty days in jail and a $250 fine.12 Officially, the trial never happened.
Is there a problem here? Not according to Michael Allen, the Hamilton County Prosecutor, the person whose office is the only party that by law can object to such expungements.13 Allen was quoted in a recent article as saying that it is the official position of his office not to object to an expungement of any trial resulting in an acquittal, regardless, apparently, of the public interest in the case.14 According to Allen, the number of expungements in Hamilton County, including those of numerous high-profile cases, is exactly the way the system is supposed to work.15
This Article seeks to demonstrate that the practice of routinely sealing criminal trial records in Hamilton County, even in cases of enormous public interest, is exactly the way the system should not work. To the contrary, the author will endeavor to show that the sealing of records under the relevant statute, Ohio Revised Code section 2953.52,16 is properly reserved for cases in which the public has no significant interest, and only then in the exceptional case. To make this argument, the author will explore the law of expunction both before and after the effective date of section 2953.52, demonstrating how the statute has turned a remedy that was once considered extraordinary into one demanded as a matter of right. The Article will then examine the Roach case as an example of how the statute can combine with prosecutorial indifference to seal the record of what is perhaps the most significant criminal trial in recent Cincinnati history. The author will also discuss a recent court of appeals decision stemming from the Roach case, and presently before the Ohio Supreme Court, holding that, on its face, section 2953.52 violates the federal and Ohio constitutions by denying the public its presumptive right of access to court records. Finally, the author will propose changes to section 2953.52 to ensure that the statute is indeed narrowly tailored to protect overriding First Amendment values.
Prior to September 26, 1984, the effective date of section 2953.52,17there was no statutory authority for a trial court in Ohio to seal the record of an acquitted defendant. The only existing expungement statute, Ohio Revised Code section 2953.32, extended the remedy to first offenders, but was silent as to those who had been prosecuted but not convicted.18
Still, in rare cases, where it was clear that the defendant had been not only acquitted but also exonerated, i.e., proven to be unjustly charged, trial courts overcame the lack of statutory authorization by relying upon their equitable powers to seal the record.19 For example, in State v. Pinkney,20the court of common pleas ordered sealed the record of an eighteen-yearold defendant in a prosecution for first-degree murder after other personsPage 4 confessed to the crime.21 The court was careful to observe, however, that expunction was an "'extreme remedy'" that should "'seldom be invoked'"-and not simply because the defendant was acquitted or discharged from further prosecution.22 Similarly, in State v. Allen,23 the trial court ordered sealed the arrest record of a defendant who had been shown by fingerprint evidence to be the victim of mistaken identity.24Noting that courts were "reluctant to order expungement in the absence of statutory authorization," the court nonetheless echoed Pinkney and stated that in "exceptional cases" the individual's privacy interests justified expungement.25
The only discussion of the issue by an appellate court occurred in State v. Drewlo.26 Anticipating legislative action, the court of appeals specifically outlined the considerations that any future statutory plan for expungement of the acquitted should address, including the question of whether relief was to be granted merely upon "a verdict of acquittal" or "a specific finding of exoneration."27 Absent such a statutory plan, the court adopted the view that expungement was an equitable remedy requiring "exceptional circumstances such as mistaken identity, false report by a complaining witness, police misconduct, or unconstitutionality of a criminal statute."28
In 1981, the Ohio Supreme Court addressed the issue of equitable expunction for the first and only time in City of Pepper Pike v. Doe.29 In Pepper Pike, the prosecution had dismissed charges against the defendant as part of an agreement requiring her to dismiss a civil action against thePage 5 prosecuting witness, her ex-husband.30 When the defendant later moved to have all record of her arrest sealed, the trial court denied the motion, asserting a lack of jurisdiction.31 The Tenth District Court of Appeals held that the trial court had erred by failing to recognize its equitable authority to grant the relief, but concluded that the error was harmless because the circumstances of the case were neither so unusual nor exceptional to have warranted use of the trial court's equitable powers.32
The Ohio Supreme Court both agreed and disagreed with the court of appeals.33 Putting its imprimatur on the "novel" concept of equitable expunction, the court agreed that trial courts had the equitable power to seal trial records in "unusual and exceptional circumstances."34 The court, however, disagreed with the appellate court's holding that the circumstances of the case did not warrant expungement.35 In the court's view, the defendant was entitled to have the trial record sealed because her ex-husband and his current wife had "used the courts as a vindictive tool to harass [her]."36
The court in Pepper Pike then took the analysis a step further, stating that the basis for expunction was "the constitutional right to privacy."37Even so, the court cautioned that expungement was not an automatic concomitant of acquittal.38 The court established a balancing test that required trial courts to weigh "the interest of the accused in his good name and right to be free from unwarranted punishment against the legitimate need of government to maintain records."39 Expungement was proper only where there was "no compelling state interest or...