Case No.

____________
__________________________________________________________

In the
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
________________________________________________________

IN RE SCRIPPS MEDIA, INC. D/B/A WCPO-TV

Petitioner

FROM THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION
CASE NO. 20-CR-00142
HONORABLE DOUGLAS R. COLE

PETITION FOR WRIT OF MANDAMUS OF

SCRIPPS MEDIA, INC. D/B/A WCPO-TV

John C. Greiner (OH 005551)

Darren W. Ford (OH 0086449)
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street
Suite 1800
Cincinnati, Ohio 45202
(513) 629-2734 – Telephone
(513) 333-4316 – Facsimile
jgreiner@graydon.law
dford@graydon.law

Attorneys for Petitioner Scripps

Media, Inc. d/b/a WCPO-TV
 DISCLOSURE OF CORPORATE AFFILIATIONS AND
FINANCIAL INTEREST

Pursuant to Fed. R. App. P. 26.1(a), Petitioner WCPO-TV states

that it has a parent corporation, the E.W. Scripps Company, an Ohio

Corporation. A corporate disclosure form has also been filed.

 TABLE OF CONTENTS

DISCLOSURE OF CORPORATE AFFILIATIONS AND FINANCIAL

INTEREST ..............................................................................................2
JURISDICTIONAL STATEMENT .........................................................3
RELIEF SOUGHT...................................................................................3
ISSUE PRESENTED ...........................................................................3
FACTUAL BACKGROUND .................................................................3
REASONS SUPPORTING ISSUANCE OF WRIT OF MANDAMUS 4
A. Writ of Mandamus Standard of Review .....................................5
B. The trial court clearly abused its discretion in sealing the Order.
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CONCLUSION ........................................................................................7

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 TABLE OF AUTHORITIES

Page(s)

Cases

Application of Nat'l Broad. Co., Inc., 828 F.2d 340, 347 (6th
Cir. 1987)............................................................................................. 5

CBS Inc. v. Young,

522 F.2d 234 (6th Cir. 1975) ............................................................... 3

Cheney v. U.S. Dist. Court for the Dist. of Columbia,

542 U.S. 367 (2004) ............................................................................. 5

Detroit Free Press v. Ashcroft .................................................................. 7

Presley v. Ga,
558 U.S. 209 (2010) ............................................................................. 6

Press Enter. Co. v. Superior Ct.,

464 U.S. 501 (1984) ............................................................................. 6

Richmond Newspapers, Inc. v. Va,

448 U.S. 555 (1980) ............................................................................. 5

Shane Grp. Inc., v. Blue Cross Blue Shield of Mich.,

825 F.3d 299 ........................................................................................ 6

Statutes

28 U.S.C. § 1651(a) .................................................................................. 3

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 JURISDICTIONAL STATEMENT

This Court has jurisdiction over this mandamus proceeding

pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See CBS Inc. v. Young,

522 F.2d 234, 237 (6th Cir. 1975) (holding that court had jurisdiction

under All Writs Statute to review non-party media organization’s

challenge of district court gag order under First Amendment).

RELIEF SOUGHT

Petitioner WCPO-TV seeks a writ of mandamus from this court

directing the United States District Court for the Southern District of

Ohio, the Honorable Douglas R. Cole presiding (“Respondent District

Court”), to unseal its Order addressing Defendant Alexander Sittenfeld’s

post-trial motion seeking leave to conduct a forensic examination of a

phone belonging to a juror (the “Order”).

ISSUE PRESENTED

The issue presented by this Petition is whether the Respondent

District Court’s action of sealing the Order violated the First Amendment

to the United States Constitution.

FACTUAL BACKGROUND

In the criminal trial of United States of America v. Alexander (aka

PG) Sittenfeld, Case No. 20-CR-00142, counsel for Sittenfeld filed a post-

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trial motion seeking leave to conduct a forensic examination of a phone

belonging to a juror. According to the motion, that juror in question had

posted messages on Facebook during the trial, commenting on the trial

and on fellow jurors. That motion was listed as Document Number 222

on the Public Docket.

The United States filed a response in opposition to the motion,

which appears as Document Number 227 on the Public Docket. Sittenfeld

filed a reply memorandum, which appears as Document Number 230 on

the Public Docket. None of these papers were filed under seal.

The Public Docket indicates there have been other filings in the

case, following the filings concerning Sittenfeld’s motion. The docket lists

Document Numbers 232, 233, and 235. There is no Document Number

234 listed on the Public Docket.

In response to an inquiry from Relator’s counsel, the court’s

Courtroom Deputy indicated that the Order had been filed under

seal. (Affidavit of John C. Greiner). Accordingly, Document Number 234

is the Order addressing Sittenfeld’s motion, but the Court has restricted

public access.

REASONS SUPPORTING ISSUANCE OF WRIT OF MANDAMUS

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 A. Writ of Mandamus Standard of Review

To demonstrate entitlement to a writ of mandamus, a party must

satisfy three conditions: (1) the party seeking the writ must have no other

adequate means to attain the relief it desires; (2) the petitioner must

show that its right to issuance of the writ is “clear and indisputable”; and

(3) the issuing court must be satisfied “that the writ is appropriate under

the circumstances.” Cheney v. U.S. Dist. Court for the Dist. of Columbia,

542 U.S. 367, 380-81 (2004).

B. The trial court clearly abused its discretion in sealing

the Order.

The United States Supreme Court has held, “The right to attend

criminal proceedings is implicit in the guarantees of the First

Amendment.” Richmond Newspapers, Inc. v. Va, 448 U.S. 555, 556

(1980). This First Amendment right of public access extends to pretrial

proceedings as well as documents filed in connection with those

proceedings. See Application of Nat'l Broad. Co., Inc., 828 F.2d 340, 347

(6th Cir. 1987).

And while this right of access in not absolute, it may be overcome

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

to preserve higher values and is narrowly tailored to serve that interest.”

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Press Enter. Co. v. Superior Ct., 464 U.S. 501, 510 (1984). The trial court

must clearly articulate the interest to be protected, and consider all

reasonable alternatives before closure. See Presley v. Ga, 558 U.S. 209,

214-15 (2010) (holding that it is “incumbent upon [the trial court] to

consider all reasonable alternatives to closure”); see also Shane Grp. Inc.,

v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (“A district court

that chooses to seal court records must set forth specific findings and

conclusions which justify nondisclosure to the public.” Moreover, a

district court’s failure to set forth reasons for nondisclosure may be

grounds to vacate an order to seal. Shane Grp. Inc., 825 F.3d at 306.

The Court made no findings to support its unilateral decision to seal

the Order. Accordingly, there is no ground for sealing the Order. In

addition, even if the Court were to have sought grounds to support its

decision, none exist. The trial is over. There is no legitimate concern with

jury tampering. And given the public nature of jury service, there are no

cognizable privacy interests at stake.

On the other side of the scale is the fact that the trial concerned the

public corruption of an elected official – a matter of great and legitimate

public interest. In short, there is every reason to conduct this trial in a

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transparent manner, and no reason to conduct it behind closed doors. The

motion and the Order disposing of it are matters of public concern. As

this Court noted in Detroit Free Press v. Ashcroft, “Democracies die

behind closed doors. The First Amendment, through a free press, protects

the people’s right to know that their government acts fairly, lawfully, and

accurately . . . When government begins closing doors, it selectively

controls information rightfully belonging to the people. Selective

information is misinformation.” 303 F. 3d 681, 683 (6th Cir. 2002).

Accordingly, this Court should issue a writ of mandamus

compelling the trial court to unseal the Order. The trial court committed

a clear abuse of discretion in sealing the Order and it is within this

Court’s power to issue a writ of mandamus to the trial court instructing

it to unseal the Order.

CONCLUSION

For the reasons set forth, Petitioner WCPO-TV respectfully

requests that the Court issue a writ of mandamus to Respondent United

States District Court for the Southern District of Ohio, the Honorable

Douglas R. Cole, directing it to unseal the Order.

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Respectfully submitted,

/s/ John C. Greiner

John C. Greiner (OH 005551)
Darren W. Ford (OH 0086449)
GRAYDON HEAD & RITCHEY LLP
312 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
(513) 629-2734 – Telephone
(513) 333-4316 – Facsimile
jgreiner@graydon.law
dford@graydon.law

Attorneys for Petitioner WCPO-TV

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 CERTIFICATE OF COMPLIANCE

The undersigned counsel of record for Petitioner WCPO-TV certify

that its Petition for Writ of Mandamus complies with the limitations of

Fed. R. App. P. 21(d)(1) in that, excluding the items enumerated in Fed.

R. App. 32(f) and 6th Cir. R. 32(b), the Petition contains less than 7,800

words. In addition, this Brief complies with the typeface and type style

requirements of the applicable rules because this Petition has been

prepared in a proportionally spaced typeface using Microsoft Word 2010,

Century Schoolbook 14 point size, with footnotes in Century Schoolbook

14 point size.

/s/ John C. Greiner

John C. Greiner (OH 005551)

Attorney for Petitioner WCPO-TV

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 CERTIFICATE OF SERVICE

I hereby certify that on August 9, 2022, I electronically filed the

foregoing with the Clerk of Court for the United States Court of Appeals

for the Sixth Circuit by using the CM/ECF system. I further certify that

the foregoing was served by electronic mail and Federal Express upon

the following:

Charles Matthew Rittgers, Esq. Neal Darwin Schuett

Charles Henry Rittgers, Esq. Haughey & Niehaus, LLC
Gus John Lazares, Esq. 121 W. High Street
Nicholas Dominic Graman, Esq. Oxford, OH 45056
Rittgers & Rittgers Phone: (513) 524-5000
12 E. Warren Street Fax: (513) 524-5001
Lebanon, OH 45036 neal@rittgers.com
Phone: (513) 932-2115
Fax: (513) 934-2121
rittgerscm@rittgers.com

Attorneys for Defendant Alexander (aka P.G.) Sittenfeld

and by Federal Express upon the following:

Honorable Douglas R. Cole

Potter Stewart U.S. Courthouse
Room 810
100 East Fifth Street
Cincinnati, OH 45202
Phone: (513) 564-7620

/s/ John C. Greiner

Attorney for Petitioner WCPO-TV
12028789.1

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