This story was originally published by Canary Media.
The historic criminal trial of two former FirstEnergy executives ended with a deadlocked jury and mistrial. Now, they’re set to stand trial for a second time on the same state criminal charges related to Ohio’s House Bill 6 utility corruption scandal.
It’s the latest twist in the largest corruption scandal in state history, in which FirstEnergy’s executives allegedly bribed officials to pass and protect HB 6, a 2019 law to bail out uncompetitive coal and nuclear plants and to gut the state’s clean energy standards. Judge Susan Baker Ross plans to begin the new trial on Sept. 28.
The effects of the scandal are visible to this day: Ohioans have less solar and wind power, pay higher energy bills, and continue to have more pollution as a result of HB 6.
The state’s criminal case has focused on allegations that the former executives paid a $4.3 million bribe to a company owned by the late Sam Randazzo, weeks before he became Ohio’s top utility regulator. Other claims include fraud, money laundering, records tampering, racketeering, and conspiracy.
The defendants, FirstEnergy’s former CEO Chuck Jones and its former senior vice president for external affairs Mik Dowling, have pleaded not guilty in the state case and in a pending federal criminal case against them.
FirstEnergy admitted in 2021 that it and its subsidiaries had paid approximately $60 million to dark money groups, which then funneled the funds to an organization controlled by former Ohio House Speaker Larry Householder. Householder was convicted in 2023 on charges under the federal Racketeer Influenced and Corrupt Organizations Act.
State prosecutors did not include charges about Householder in their indictment, so Baker Ross kept that evidence out of the state case. She also excluded statements by FirstEnergy lawyers that fingered Jones and Dowling as the individuals who made the payments.
The judge’s rulings also kept jurors from learning about FirstEnergy’s admission in a deferred prosecution agreement that it paid the $4.3 million to Randazzo’s company shortly before he became chair of the Public Utilities Commission of Ohio. In return, FirstEnergy expected Randazzo to pass HB 6 and otherwise further the company’s priorities “as requested and as opportunities arose,” the company admitted in the agreement.
The two-month trial ended on March 31 when jurors made it clear they could not reach a unanimous verdict.
Minimizing confusion at the retrial
Ashley Brown, a former public utilities regulator for Ohio, said confusion could have led to the hung jury.
“The prosecutor failed to provide a full context of the legal ethics and regulatory aspects of the case,” Brown said.
Even when Dennis Deters, a current public utilities commissioner, was on the stand, the state’s lawyers did not ask him to explain some basic issues that are obscure for most of the public, Brown noted.
In the state’s retrial, a better grounding could help guide jurors when testimony again gets into the weeds.
Additional context could have helped rebut suggestions in testimony by other former FirstEnergy executives that money payments under secret side agreements were common and somehow acceptable in regulatory cases. In fact, regulators fined FirstEnergy nearly $19 million for that violation last fall.
Similarly, the first trial included multiple instances in which cross-examination by defense lawyers mixed up different aspects of utility regulation. The defense at one point treated money that FirstEnergy earned as compensation or incentives for offering energy-efficiency programs as equivalent to a charge it could collect under HB 6 for basically doing nothing.
“Most people don’t understand how that all works,” said Michael Benza, a professor at Case Western Reserve University School of Law who teaches criminal law and procedure. “So corruption can kind of hide in plain view because nobody understands what’s happening in the first place.”
The defense’s cross-examination also suggested that Randazzo couldn’t have been acting on FirstEnergy’s behalf, because ending the energy-efficiency standard cut off some of the fees the company had collected, and because Randazzo already wanted to get rid of the standard. On retrial, the prosecution might include evidence that FirstEnergy tried to put the brakes on Ohio’s energy efficiency standard as early as 2012. And, of course, one can still be paid unlawfully for something they otherwise want to do.
Brown also pointed out a question that the jurors sent the judge last month, asking for clarification about whether a bribe can happen before someone formally submits their application for a public appointment. From Brown’s perspective, the question was a legal one, to which the judge should have answered yes.
Trials’ timing may matter
The federal case against Jones and Dowling does not yet have a trial date, although one could be set next month.
As a general rule, what happens in the state criminal case should not affect what happens in the federal case, Benza said. Nonetheless, if the defense ultimately gets a verdict of not guilty in the state case, it could change how federal prosecutors approach their trial.
Because the federal case alleges violations of Ohio law in order to prove there was a pattern of corrupt activity under the Racketeer Influenced and Corrupt Organizations Act, however, the state case might well influence the federal one. A not-guilty verdict on charges related to bribing Randazzo could block that part of the case dealing with allegations about him, suggested David DeVillers, a former U.S. attorney for the Southern District of Ohio who is now in private practice with Barnes & Thornburg in Columbus. The federal government could still move ahead on the allegations relating to Householder.
For now, both the prosecution and defense will hope that the jury comes back with a unanimous verdict in their favor the next time around. But, Benza stressed, a “not guilty” verdict is not an acquittal.
“‘Not guilty’ does not mean you’re innocent,” he said. “The jury by saying ‘not guilty,’ at best, is saying that the prosecution failed to prove an element or elements of its case.”