Homicide Case Advances After Limits Placed On Pre-Trial Publicity

Homicide Case Advances After Limits Placed On Pre-Trial Publicity
Homicide

SNOW HILL — The manslaughter case against two local men charged for their alleged roles in the death of a Pennsylvania man in August moved closer to trial this week with a tacit order from a Worcester County Circuit Court judge to halt pre-trial leaks in what has certainly been an unconventional case thus far.

Around 3 a.m. on Aug. 24, Ocean City Police and Emergency Services responded to a hotel parking lot on 2nd Street for a reported assault that had already occurred. Upon arrival, OCPD officers found a man, later identified as Justin D. Cancelliere, 37, of North Whitehall, Pa., unconscious and unresponsive. First responders initiated emergency lifesaving procedures and transported him to AGH where he was later pronounced deceased. An autopsy was performed and the Office of the Chief Medical Examiner ruled the nature of Cancelliere’s injuries as head and neck trauma and the cause of death a homicide.

After an investigation, police detectives determined the assault occurred during an altercation in the area of Talbot Street and Baltimore Ave. Two suspects identified as Caleb Edwin-Earl Ochse, 27, of Ocean City, and Christopher Blake Kendall, 22, of Ocean City, have been charged with manslaughter, second-degree assault, reckless endangerment, affray, disorderly conduct and alcoholic beverage-did endanger for their alleged roles in the confrontation.

From nearly the beginning, Ochse’s parents, through their attorney, has made available certain evidence in the case, including video surveillance footage of the beginning and end of the alleged incident along with witness testimony, that wouldn’t typically be disseminated in a criminal case, in an effort illuminate some of the facts of the case and tacitly engage the public and dispel the charges against the defendants. For its part, the state’s attorney’s office has repeatedly said it is duty bound not to publicly discuss the pending case in advance of the trial.

The issue came to a head late last month when the state filed a motion to limit pre-trial publicity in the case. Essentially, the motion asks Judge Thomas C. Groton to order Ochse parents through their attorney to cease releasing pertinent evidence in the case to the media, specifically The Dispatch, and through its website, “Justice or Locals,” on which video surveillance, witness testimony and other information about the case is readily available for public consumption.

It’s important to note that almost from the beginning, The Dispatch has reported details about the case that might not be readily available in the public file, but the media outlet has merely provided an outline of the evidence made available without attempting to draw any conclusions. Ochse’s parents believe it is in the interest of the defendants to make the information available, but The Dispatch has been careful not to attempt to persuade public opinion and has offered only information that could be deemed objective for all parties involved.

The state’s attorney’s office motion is directed at Ochse’s and Kendall’s attorneys of record in the criminal case, including Mike Farlow and Frank Benvenuto for Ochse and Jeff Ray for Kendall.

In a letter accompanying the motion to limit pre-trial publicity, the state’s attorney’s office suggests it has and would continue to limit the release of discovery materials to the defense until assurances were made the information would not be instantly made available to the media or the public through the website. This decision to not cooperate with the defense has essentially resulted in the case grinding to a halt because information was not being disseminated as it normally would.

“Based on your conduct, which required the filing of this motion, it is probable that any materials provided to you as part of the discovery process will either be released to the media or

posted on a public forum,” the letter reads. “As a result, the state will not provide copies of any discovery items until such time as there are assurances that the information provided will not be inappropriately released and/or used. I suggest you re-read the Maryland Lawyer’s Rules of Professional Conduct, which enumerates certain restrictions on the type and amount of pre-trial publicity.”

According to the Maryland Lawyer’s Rules of Professional Conduct, “a lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”

Prior to a hearing on several pending motions in Circuit Court on Tuesday, attorneys for both sides met with Groton out of the courtroom presumably to discuss the motion to limit pre-trial publicity. Following those discussions in the public courtroom, the state’s attorney’s office agreed to make available all remaining discovery materials to the defense attorneys and promised to meet with the defense teams in the near future to carefully go over the evidence.

While Groton has not ruled on the motion to limit pre-trial publicity, it was clear on Tuesday his intent was to stave off the release of discovery material to the media and on the website, particularly the Medical Examiner’s report on the deceased. Farlow told Groton the Ochse parents’ attorney, J. Michael Hannon, would be responsible for lining up expert witnesses to testify on the Medical Examiner’s report, which essentially moved the attorney from an interested third party to an active attorney in the case. Groton told the defense team the Medical Examiner’s report would be made available, but admonished Hannon and any other members of the defense not to make the report available to the media or on the website.

“The report will be made available solely for the purpose of showing it to experts and nobody else,” the judge said. “That is an order of the court.”

Essentially, Groton tacitly ordered the Medical Examiner’s report and other discovery material not to be released to the public through the media or the website in advance of the trial, tentatively set for Jan. 7, while not actually ruling on the motion to limit pre-trial publicity.

Meanwhile, the defense attorneys this week filed their own motion asking the court not to grant the motion to limit pre-trial publicity, essentially evoking First Amendment rights and suggesting the evidence should be part of the public record.

“The state’s motion should be denied because it misapplies the authority of the Maryland Rule of Professional Conduct, relies on numerous unsubstantiated factual assertions, contradicts established First Amendment principles of openness and cites no other legal authority,” the motion in opposition to the state’s motion to limit pre-trial publicity reads.

The motion in opposition essentially calls out the state’s attorney’s office for purposely withholding discovery material because the Ochse parents and their attorney released the evidence to the media and through its website.

“Three articles have appeared in the Maryland Coast Dispatch based on, in part, press releases issued by Mr. Ochse’s family members,” the motion in opposition reads. “An advertisement was placed in the Maryland Coast Dispatch and referenced a webpage created by the Ochse family. That website disseminates information regarding Mr. Ochse’s case. The state has filed a motion to limit pre-trial publicity in this matter, while it is refusing to provide essential discovery to the defendant, including potentially exculpatory material as well as the Medical Examiner’s report and autopsy.”

The motion in opposition points out the discovery material has thus far been made public by Ochse’s parents and their attorney and not the attorneys of record for the defendants.

“The state’s reliance on this rule as authority to limit disclosure of materials in the public investigation record and shut down the operation of an independent website in inapposite,” the motion reads. “As a critical but initial matter, the rule governs only the extrajudicial statements of Mr. Ochse’s counsel of record in this case. The state, without pointing to any credible evidence, recklessly alleges that Mr. Ochse’s criminal defense attorneys in this case made statements in violation of the rule. In fact, the state acknowledges that the statements were not attributable to Mr. Ochse’s attorneys, but to the Ochse family.”