Juror held in contempt for bringing newspaper into jury room loses appeal

AKRON — The 9th District Court of Appeals has dismissed an appeal of a jail sentence and fine served by a juror in a Lorain County Common Pleas Court criminal trial after he brought a copy of a Chronicle-Telegram article about the defendant's case into jury deliberations. The court ruled the issues raised in Frederick Flesch's appeal of a 30-day jail sentence — Flesch served only seven days in the Lorain County Jail, paid $150 of the fine and $1,525 toward the cost of selecting a new jury — were moot and dismissed his appeal. Justices Julie Schafer, Lynne Callahan and Donna Carr rejected Flesch's arguments as moot in a ruling issued July 20. Schafer, who wrote the unanimous decision, said the burden was on Flesch to show "he will suffer some collateral disability or loss of civil rights," which the appeals court found he did not. The justices also ruled that Flesch had to prove he served his sentence "involuntarily," which they said he did not, and that he did not ask his sentence be stayed pending appeal and completed all the requirements imposed by Judge Christopher Rothgery. Flesch, of Vermilion, was found in contempt of court by Rothgery in July 2019 after serving on a jury in the case of Thomas Fourdyce, who was accused of exposing himself to two workers at a Wellington gas station, according to Chronicle-Telegram archives. "During jury deliberations, some jurors informed the court's bailiff that Mr. Flesch had brought a newspaper article about (Fourdyce's) case into the jury room and discussed it with the jury," justices wrote. Flesch and the other jurors had been "repeatedly admonished … to avoid reading outside information such as newspapers and the internet," and Rothgery had warned them about being held in contempt. Flesch admitted "skimming" the article when called in front of the judge in June 2017, and other jurors told Rothgery that Flesch had discussed the article with them. A mistrial was declared in Fourdyce's case and Flesch held in contempt. Flesch appealed the ruling, arguing that he was denied due process, his right to counsel and a hearing before being found in contempt. The appeals court agreed, and ordered a hearing. That was held in June 2019, and Rothgery heard testimony from a psychiatrist who testified Flesch had a mental illness and "had not intentionally disobeyed the trial court's order" but had simply "forgotten the trial court's warnings and, therefore, had diminished culpability for his offense." Rothgery again found Flesch in contempt and sentenced him to time served, and found he had paid his fines and showed good behavior. "So forgetful is one thing if I mention it in passing …" Rothgery said when imposing the sentence on Flesch, according to Chronicle-Telegram archives. "But to hold that newspaper out and slap it down on the table in front of his fellow jurors doesn't seem like forgetful considering the number of times told and the purposefulness of which it seems to have been done by each of other jurors in my discussions with them. We've had too many of these in the courthouse with people violating their oath with regards to outside influences in the jury room." Flesch again appealed, arguing that he was deprived of his right to remain silent, that the sentence was against the manifest weight of the evidence, not supported by sufficient evidence and that Rothgery did not ask if he had anything to say prior to imposing sentence. A second jury found Fourdyce not guilty of felony charges of abduction and menacing by stalking, but guilty of two misdemeanor charges of public indecency in June 2017. Rothgery sentenced him to 30 days in the Lorain County Jail and fined him $250, with five days of the jail term and $50 of the fine suspended on the condition he be on good behavior for one year, according to court records. Contact Dave O'Brien at (440) 329-7129 or dobrien@chroniclet.com. Follow him at @daveobrienCT on Twitter.