In October, Common Please Judge Norbert Nadel said he would seal a statement given police by a defendant in the morgue photo case (see Morbid Subject issue of Oct. 18-24, 2001). But Allen then proceeded to give copies of the statement to reporters for Cincinnati's daily newspapers anyway.
Attorneys Louis Sirkin and Marc Mezibov last week asked Nadel to make Allen show cause why he should not be found in contempt of court. Calling Allen's actions an insult to the court, Mezibov asked what would happen if attorneys started ignoring judges' orders.
"That would turn decorum and procedure on its head," Mezibov said.
Sirkin said prosecutors decided not to use the statement in court, in order to avoid separate trials for Dr. Jonathan Tobias and photographer Thomas Condon. But after the case was decided, Allen's office found other uses for Condon's statement -- even though Nadel said it should be sealed.
"I think it was a deliberate, open kind of thing by the office of Mr. Allen to make that public when it was made public," Sirkin says.
Allen's argument is that oral pronouncements from the bench are not officially orders of the court. Although the judge said in court the statement would be sealed, he didn't put it in writing
Without a journalized court order, Allen says, the statement was never sealed and he had to meet the newspaper's public-records requests.
Allen's respect for the Ohio Public Records Act is spotty. In the very same trial, Michael Helton, who worked in the Clerk of Courts Office, testified he copied photographs of corpses filed as evidence and showed them to two or three people at River Downs race track. The photos were public records, which Ohio requires be given to citizens on request.
But in closing arguments to the jury, Assistant Prosecutor Thomas Longano attacked Helton as a "goofy clerk." He told the jury Helton would be "dealt with" and "pay for" his actions. Helton did pay, too. He was fired after testifying.
Allen, however, is still in office. Nobody has even called him "goofy," at least on the record.
Allen claims he was upholding the law, making public records public -- the same thing that got Helton fired. Longano defended Allen's actions in a Jan. 30 hearing.
Longano, who used the word "bullshit" in closing arguments, was far more restrained in addressing Allen's release of the statement.
"He has a great deal of respect for that robe that you wear," Longano told Nadel.
Hamilton County might not know what is a public record, but we do know with certainty that the prosecutor likes Judge Nadel's snappy blue robes.
Longano admitted Allen had released the statement Nadel wanted sealed, but defended his boss's intentions. He said the media has always won when public records requests went to litigation with the prosecutor's office.
Nadel also said he's had bad luck in court, too.
"I've been sued by the media and I've lost," he said.
Mezibov had little sympathy for Longano. If prosecutors keep losing litigation, he said, it might indicate they're poor lawyers.
"Maybe they don't have great counsel," he says.
Nadel decided nothing would happen to Allen for disseminating the not-quite-sealed statement.
"The defendants have in no way been harmed by any of this public disclosure whatsoever," he said.
Besides, according to Nadel, a pending civil suit would probably result in disclosure of the same statement.
Nadel's reasoning appears to be that what Allen thought was a public record -- but wasn't supposed to be -- might be one in the future. What it all means is Allen is off the hook.
"Mr. Longano protects his boss well, as he should," Mezibov says. "He's a good soldier, Mr. Longano. The problem is his boss has done something wrong."
For the record, the judge disagrees.
Nadel, by the way, continues to disregard requests for public records. When CityBeat asked him for a copy of the jury instructions at the end of the Tobias-Condon trial, Nadel refused.