By Jennifer Feehan
The Blade
TOLEDO, Ohio — Whether the Toledo Fire Department’s review of the 2014 blaze that killed two firefighters should be made public before the accused arsonist goes to trial could be decided by the judge presiding over the case.
Prosecutors have asked Lucas County Common Pleas Judge Stacy Cook for “clarification” on the gag order that was issued in the case of Ray Abou-Arab shortly after the Oregon man was indicted on 13 charges, including aggravated arson and aggravated murder. Mr. Abou-Arab is accused of setting the fire that killed Toledo fire Pvts. Stephen Machcinski, 42, and James Dickman, 31.
The issue is expected to be discussed at a June 29 hearing before Judge Cook, who has been presiding over Mr. Abou-Arab’s case since February, when Judge Frederick McDonald retired.
Judge McDonald issued the gag order, which bars defense attorneys and prosecutors from making public statements about the case other than those made in open court.
The order states that “counsel or anyone else acting on their behalf not provide any statements or information to any source which may in any way create or influence pretrial publicity in this case.”
City Law Director Adam Loukx said the city has been operating under the belief that reports on the fire, including the department’s internal review of how the fire was fought that day, were covered by the gag order. That report has not been released, according to Lt. Matthew Hertzfeld, fire department spokesman.
“It was our understanding from the prosecutor, and this goes way back to when [Mayor] Mike Collins was still here, that the gag order applied, and we shouldn’t release the report,” Mr. Loukx said.
In April, some city officials also cited the gag order in declining to comment on a report on the fatal fire issued by the National Institute for Occupational Safety and Health, which made 11 recommendations that the fire department should implement, including the reinstatement of a full-time safety officer.
Still, it remains unclear just who and what information was silenced by the gag order.
Jeff Lingo, chief of the criminal division for the Lucas County Prosecutor’s Office, and defense attorney Pete Rost declined to comment, citing the gag order.
Mr. Abou-Arab, 62, of 1311 Sierra Dr., is charged with two counts of aggravated murder, each with death penalty specifications; two counts of murder; eight counts of aggravated arson, and one count of tampering with evidence stemming from the Jan. 26, 2014, fire at a Magnolia Street building he owned.
Also at the June 29 hearing, defense attorneys are expected to argue that fire investigators might have destroyed preliminary reports suggesting the blaze started in a kitchen inside the Magnolia Street building rather than in the garage, as prosecutors now contend was the case.
Such a report could point to their client’s innocence, they suggested in a motion filed on the matter.
Prosecutors have countered that the defense may call on the writer of the report to testify.
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