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Prosecutorial Misconduct? Attorney is Suspended.

Is there really absolute prosecutorial discretion when it comes to plea deals with those accused of criminal activity? Perhaps not.

On March 17, 2020, the Supreme Court of Ohio suspended City of Sylvania Assistant Prosecutor Anthony Spinazze for six months for his misstatements made to the Municipal Court Judge involving his reduction of an OVI charge to having physical control over a vehicle while under the influence, a first-degree misdemeanor.

Jeremiah Johnson was arrested for OVI and arraigned in the Sylvania Municipal Court. Spinazze met with Johnson’s attorney and the deputy sheriff. After watching the body cam of the arrest, Spinazze agreed to reduce the charges but the deputy sheriff objected.

The judge requested that Spinazze appear in court to explain the reason for the recommendation. Spinazze indicated that there was a question as to the police officer’s observation and the city had some concerns about whether Johnson was actually in the car. He also indicated the arresting officer agreed to the reduced charge. The court accepted the plea.

Surprised by the reduced charge given Johnson’s two prior OVIs, Chief Prosecutor Christy Cole asked Spinazze whether the arresting officer agreed, and Spinazze admitted that he had not. However, he failed to advise Cole of his misstatements to the Court. After listening to the Court’s audio recording of the hearing, Cole expressed her concern to Spinazze that he had misled the court. In response, Spinazze falsely claimed he had mistakenly relied upon defense counsel’s account of the incident without reviewing the file. Cole later discovered that truth after meeting with the deputy sheriff.

The court vacated Johnson’s plea agreement, requested appointment of a special prosecutor, Johnson’s counsel withdrew and Johnson was appointed new counsel and the judge found him guilty of OVI.

In disciplinary proceedings, Spinazze was found to have violated Prof.Cond.R. 3.3 (making a false statement to a tribunal); Prof.Cond.R. 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), and Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice) and received an actual six month suspension. (2002-Ohio-957).

ethics, Uncategorized

Judge’s OVI Nets Public Reprimand

On August 12, 2020, the Supreme Court of Ohio publicly reprimanded Franklin County Common Pleas Court Judge Monica Hawkins after her conviction for OVI, a first-degree misdemeanor. She is the third judge to be publicly reprimanded this year for such conduct.

The incident occurred on January 31, 2019 in Pickerington, Ohio, where Judge Hawkins was arrested after a citizen called 911 reporting a suspected intoxicated driver.

Judge Hawkins denied consuming alcohol stating that she just got lost while driving home. The officer that stopped her smelled alcohol, noticed a bleeding knot on her forehead and what appeared to be vomit on her coat and on the car floor. Judge Hawkins identified herself as a judge. After failing several sobriety tests, Judge Hawkins was arrested for OVI.

Judge Hawkins refused to provide a breath sample and, after the police obtained a warrant, refused to allow a blood draw to test her alcohol level. Eventually four hospital employees held her down so that the blood could be drawn. Results of the blood test showed a blood-alcohol level of 0.199, over twice the legal limit of 0.08.

Judge Hawkins pled guilty to OVI and was sentenced to 90 days in jail, with 87 days suspended and a $375 fine. She was permitted to complete a 72-hour driver-intervention program rather than actual jail time.

In disciplinary proceedings, the Supreme Court of Ohio found that Judge Hawkins violated Jud.Cond.R. 1.1 (failure to comply with the law) and Jud.Cond.R. 1.2 (failure to act in a manner that promotes the public confidence and independence, integrity and impartiality of the jury and to avoid the impropriety and the appearance of impropriety). (2020-Ohio-4023).

Judge Doherty violated Jud.Cond.R. 1.2 and Jud.Cond.R. 1.3 (using the prestige of the office for personal gain) for a similar violation and received a public reprimand (2020-Ohio-1422). Judge Gonzalez violated Jud.Cond.R. 1.1 and Jud.Cond.R. 1.3 for similar behavior, and, likewise, received a public reprimand (2020-Ohio-3259). Judge Marshall violated Jud.Cond.R. 1.1, Jud.Cond.R. 1.2 and Prof.Cond.R. 84.(h) for similar conduct and received a public reprimand (2015-Ohio-1187).

ethics

Child Pornography Nets Indefinite Suspension

Lest there by any uncertainty, Ohio attorneys are NOT permitted to download pornography of children under 12 and maintain their license. On July 18, 2020, the Supreme Court of Ohio indefinitely suspended David Conners for his felony conviction on one count of illegal use of a minor in nudity-oriented material saying it adversely reflected on his honesty, trustworthiness and fitness to practice law.

Conners stipulated to the download and use of the photos on his electronic devices. He testified he did not know doing so was a felony since the children were not engaged in sexual activity but were merely posing nude. He understood that pornography involving underage children inherently victimizes the children. He further testified that the download of the material was not an accident.

The Supreme Court of Ohio adopted the Board’s finding that such conduct violated Ohio Prof.Cond.R. 8.4(b) prohibiting lawyers from engaging in conduct that adversely reflects on the lawyer’s honesty and trustworthiness and Prof.Cond.R. 8.4(h) (engaging in conduct that adversely reflects on the lawyer’s fitness to practice law. The offense is considered a crime of moral turpitude.

An indefinite suspension prohibits Conners from applying for reinstatement of his law license for at least two years. When he does apply for reinstatement, he must demonstrate that he has the requisite character and fitness to practicing law as though he were applying for a law license for the first time.

The full opinion can be reviewed at 2020-Ohio-3339.

ethics

Whatever Happened To The Jury Trial?

Are jury trials a thing of the past? Certainly not!

Scheduled to restart jury trials in August, the Cuyahoga County Common Pleas Court judges voted to extend the temporary halt until September 21, 2020. The decision was due to a resurgence in COVID cases. Administrative and Presiding Judge, Brendan Sheehan, promised a reevaluation of the decision on or before August 24, 2020. The Order is the third extension of the moratorium on jury trials, which began in March, 2020.

While new COVID cases were down to about 300 cases per day, there was one day, July 13, when the daily case count soared to 1,733 within a 24-hour period. This resulted in an order from Governor Mike DeWine that all citizens wear masks in an effort to contain the virus. currently the daily case count is down to 138.

Ohio has not defined the words “daily count” as it relates to COVID. It has defined the words “onset date” to mean the date the illness began. However, if the date is unknown, the date associated with the illness is used as the “onset date.” This may account for the rapid rise in the “daily count” in a 24-hour period.

The additional delay is to ensure the safety of the judiciary, the jury, the prosecutors, the defendants and the rest of the public that may be present during a jury trial. While this temporary moratorium has been extended, it is certain that jury trials will continue once this pandemic abates.

As reported in Cleveland.com on August 4, 2020.

ethics

LAWYER SUSPENDED FOR REFUSING TO PARTICIPATE IN CRIMINAL TRIAL

When indigent defendant Richard Mick fired his public defender and hired Kenneth Richard Bailey as defense counsel, he had no idea it would ultimately lead to his conviction on two counts of gross sexual imposition and two counts of rape resulting in a sentence of life without parole. The sentence was later reversed for Bailey’s ineffective assistance of legal counsel. A new trial resulted in a mistrial and Mick is currently awaiting his third trial on the charges.

How did this Happen?

When the defense’s expert psychologist died, the court denied Bailey’s petitioned for the appointment of a new defense psychologist. It reasoned that the defendant was no longer indigent as he had retained counsel. The court continued the trial to a date 3 days following Bailey’s son’s wedding in Las Vegas. Bailey’s repeated attempts to have the trial moved were denied. The court also denied a requested continuance when the defendant was hospitalized the weekend before trial and the defense had not had time to interview a prosecution witness identified late in the case.

Bailey refused to participate at trial. The court ordered him to participate and he declined on the basis that his client’s constitutional rights were so violated that he could not receive a fair trial.

At Bailey’s disciplinary hearing, he was found to have violated Prof.Cond.R. 3.5(a)(6) (engaging in undignified and discourteous conduct) when, at a bench conference, he responded, “I may but I won’t” to the judge’s instruction, “[Y]ou may move back.” Bailey was also found to have violated Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice) for refusing to participate in the trial. The court found Bailey to be in contempt and sentenced him to the maximum 30 days in jail and a $250 fine permitted under Ohio law for a first time offense.

The Supreme Court of Ohio suspended Bailey’s license for one year with 6 months stayed.

Meanwhile, Bailey’s son, Kenneth Richard Bailey, posted on Facebook:

“While I respect the Judge for his office and his faith, I’m probably the most upset. After witnessing the Judge condescendingly criticize prosecutors, probation officers, defense lawyers, and defendants—all in open court and in a rude manner— I think it’s time for the self-righteousness to stop. The fact it takes the Court years to rule on divorce cases after the trial is completed makes the need to keep the underlying case here moving is [sic] wholly dishonest. The fact the Judge’s treatment of other court employees has caused an unpublished rift in the courthouse, it is self-serving, and it adds nothing to jurisprudence. Someone needs to speak out against this, because it is not okay. Someone must run against him.”

He also responded to a comment that his father “was entitled to make a record, and he was denied that right. Just sad.”

In a later comment, he stated:

“All our Judge accomplished was to make it a very long road to get the continuance we requested, make it cost the taxpayers an immense amount of money and waste a week of 12 jurors[’] lives.”

The younger Bailey later removed the Facebook post and sent an apology letter to the judge.

The Supreme Court of Ohio issued a public reprimand to the younger Bailey for violation of Prof.Cond.R. 8.2(a) (making a false statement about the qualifications and integrity of a judicial officer). It reasoned that his Facebook comments, taken together were “specific remarks  about judicial performance that, taken together, wrongly called into question [the trial judge’s] ability and integrity, . . . .”

The entirety of this opinion is can be obtained at 2020-Ohio-3701.

ethics

REMOTE SESSION BAR EXAM

In a startling announcement, The Supreme Court of Ohio announced yesterday that it will conduct the next bar exam remotely in light of coronavirus concerns for safety. In May, the exam, originally scheduled for the end of July, 2020, was postpone until September. The new announcement postpones the exam yet again for one month, until October 5 and 6, 2020. Historically, the Ohio bar exam is held at the end of July and at the end of February. However, COVID-19 has thrown this year’s exam schedule completely off.

Those with applications pending to take the September exam will automatically be rolled over to take the October exam. For those wishing to opt out of the automatic roll over admission, the deadline to withdraw is September 28, 2020.

There is good news for applicants who withdrew their applications when the bar exam was moved from July to September. While they were prohibited from taking the September bar exam, they will be permitted to resubmit their applications to take the October bar exam remotely.

More good news for those granted Recent Graduate Practicing Pending Admission under the Supreme Court’s May 14, 2020 order. Their temporary authority to practice law will not expire on October 1, 2020 if they opt to transfer to take the February bar exam. Instead, it will continue until February 1, 2021.

For more information, see the Supreme Court of Ohio’s website at http://www.courtnewsohio.gov/happening/2020/barExamPostponement_072220.asp#.Xxmsip5KhaQ

ethics

From Householder to Cupp

When Larry Householder was removed as Speaker of the House after felony racketeering charges involving a nuclar bailout law he championed, who knew Robert Cupp would replace him?

You may remember Mr. Cupp from when he was Justice Cupp. He served one 6-year term, during which he voted with the majority that FirstEnergy would not be permitted to pass along increases in coal prices to its customers as “distribution costs.” He also voted to permit Ohio citizens to both register and vote on the same day. And he voted to uphold the newly redrawn Congressional district map. He was defeated in 2012 by Justice William O’Neill.

After serving as a state senator for 16 years and as Justice for 6 years, Cupp was elected as state representative for Lima. Although he received no votes from the Democrats for the Speaker position (Cupp is a Republican), Democratic Minority Leader Emilia Sykes has acknowledged that he has worked closely with Democrats in the past.

According to Cupp, his first legislative priority will be the nuclear bailout law. Interestingly, he voted for the law. There is currently a proposed bill to repeal it.

As reported in Statehouse News Bureau on August 4, 2020.