By Dan Horn
The Cincinnati Enquirer

Church lawyers on Wednesday questioned whether Hamilton County prosecutors could select a fair and impartial grand jury to investigate how the Archdiocese of Cincinnati handled sexual abuse cases.

The lawyers asked Common Pleas Judge Steven Martin to review transcripts of the grand jury selection process for any improprieties.

The judge agreed to the request, but said prosecutors traditionally oversee grand jury proceedings and, in this case, appear to have done nothing wrong.

Martin also warned archdiocese lawyers that their attempts to get more involved in the secret grand jury proceedings could lead to a hearing in open court, which could reveal names of witnesses and individual targets of the investigation.

"So if you want to contest the entire proceedings and have the entire jury (selection) done in open court, listing every targeted defendant, make the motion," the judge said.

The dispute arose just a few hours after Martin swore in 46 prospective grand jurors, 14 of whom will be picked to spend the next several months reviewing church records and listening to testimony related to clergy sexual abuse cases.

A previous grand jury indicted two priests on criminal charges earlier this year. The new grand jury is expected to focus more on church officials who supervised abusive priests than on the priests themselves.

Church lawyers said they raised their concerns with the judge Wednesday because they want to ensure a fair selection process.

"We are not trying to waste anybody's time, but we want a grand jury impaneled pursuant to the law," said Tom Miller, one of the archdiocese's lawyers.

He said the main concern is whether prosecutors followed the rules when they questioned jurors outside the presence of the judge about their ability to serve on the jury.

"I'm not looking for a Hamilton County rule, a good-old-boy rule," Miller told the judge. "I'm looking for the rule that says (prosecutors) are allowed to do it."

Martin said prosecutors have a duty to question jurors in order to weed out those who cannot be fair.

The judge said the only alternative is for him to do it, which would open all of the proceedings to the public.

Church lawyers said they oppose a public hearing.

"All of the information that the court has discussed is the sort of information that's meant to be secret," said archdiocese attorney Mark VanderLaan.

Martin told church lawyers to come back for another meeting today to tell him how they want to proceed: Either with a secret grand jury process or one that is more open to them and everyone else.

The issue must be decided soon because the grand jury is expected to begin its work Monday.

The judge said subpoenas ordering witnesses to appear before the grand jury already have gone to the archdiocese's law firm. But no one would say Wednesday who has been called to testify.

Last year, during the previous grand jury investigation, Archbishop Daniel Pilarczyk and several other high-ranking church officials received subpoenas. Prosecutors later dropped the demand for the archbishop's testimony.

Prosecutors have been investigating clergy abuse for more than 18 months and have received 20,000 documents from church files.

Some of those documents could be presented to the grand jury as it begins its work.

Prosecutors also want to review a small number of church records that have been withheld by the archdiocese, which claims the records are private communications between church officials and their lawyers.

At a separate hearing at the appeals court Wednesday, prosecutors argued that the archdiocese may be hiding important records by claiming they are protected by attorney-client privilege.

Church lawyers, though, said they have given prosecutors everything the law requires them to turn over.

They said a judge or court-appointed special master has reviewed all church records - including those withheld from prosecutors - to determine whether they should be shared with law enforcement.

Those court officials already have ruled on which records should be turned over, but both sides appealed those rulings.

The Ohio 1st District Court of Appeals is expected to settle that dispute this year or early next year.

E-mail dhorn@enquirer.com