AMY CONEY BARRETT: Probable Next U.S. Supreme Court Justice

A 7th Circuit Court of Appeals Judge, Notre Dame Law School graduate and Justice Scalia’s former law clerk, U.S. Supreme Court nominee Amy Coney Barrett is posed to become the next U.S. Supreme Court Justice replacing recently departed Justice Ruth Bader Ginsburg. Republicans have indicated a determination to have Judge Barrett approved by October 31, 2020 and sitting on the bench by the presidential election. If accomplished, this will be the fastest U.S. Supreme Court appointment since Justice Sandra Day O’Connor in 1981.

Judge Barrett identifies as an originalist in Constitutional interpretation, identifying with Justice Scalia’s philosophy. She believes that the U.S. Constitution is to be given the interpretation that it had when it became law and was ratified. Judges are not policy makers, according to Judge Barrett. That is the function of Congress when it comes to statutes and the people when it comes to the U.S. Constitution through constitutional amendment.

Judge Barrett is the author of Doe v. Purdue University, 928 F.3d 652 (7th Cir. 2019), a unanimous decision reinstating a Title IX lawsuit brought by a Purdue University student after the University found him guilty of sexual assault. Writing for the court, Judge Barrett indicated that the University had denied Doe due process when it adopted the victim’s story without interviewing her and prior to hearing from either the victim or Doe. The University also denied Doe the ability to present evidence in his defense. As a result of the guilty finding, Doe was suspended from Purdue for a year and expelled from ROTC, affecting his ability to pursue his chosen career in the Navy. Writing for the Court, Judge Barrett stated that the University’s conducted violated Doe’s liberty interest in pursuing his occupation in violation of the Fourteenth Amendment. She further wrote that the University violated Doe’s Title IX rights “by imposing punishment infected by sex bias.”

In a Second Amendment case, Kanter v. Barr, 919 f.3d 437 (7th Cir. 2019), the 7th Circuit upheld the constitutionality of a state law prohibiting nonviolent felons from possessing firearms. There, plaintiff was convicted of mail fraud, which, under the state law, prohibited him from possessing a firearm. Disagreeing, Judge Barrett’s dissent stated that, while the government has a legitimate interest in denying gun access to violent criminals, applying that law to nonviolent criminals was not substantially related to an important governmental interest. She indicated that there was no evidence suggesting that prohibiting nonviolent felons from gun access promotes the state’s legitimate interest in protecting the public from gun violence. Accordingly, such an application violates the Second Amendment to the U.S. Constitution.

Writing for the 7th Circuit in a Fourth Amendment illegal search and seizure case,  United States v. Watson, 900 F.3d 892 (7th Cir. 2018), the Court overturned the defendant’s conviction of possession of a firearm while under felony conviction. Judge Barrett wrote that the police lacked probable cause to search the defendant’s vehicle when responding to a citizens call that people were “playing with guns” in a parking lot. She pointed out that responding to a concerned citizen’s call where no crime was alleged did not allow the police to immediately seize the people involved upon arrival and search the vehicle incident to arrest. To do so was a Fourth Amendment violation.

After serving her judicial clerkships, Ms. Barrett worked for a D.C. law firm where she worked on Bush v. Gore. Thereafter, she taught at George Washington University Law School and then returned to Notre Dame University Law School where she taught constitutional law, federal courts and statutory interpretation.

Story distilled from https://en.wikipedia.org/wiki/Amy_Coney_Barrett and authorities cited therein.

RUTH BADER GINSBURG, A NAME TO REMEMBER

Ruth Bader Ginsburg was certainly no stranger to adversity. Prior to dying before Ruth graduated from high school, her mother inspired a love of learning in her. Graduating at the top of her class at Cornell University, she entered law school at Harvard. There she experienced the kind of adversity that either makes or brakes people. At that time, she was a mother, her husband, also a law school student, was treating for cancer and she was one of 9 female students in a male dominated 500 person class. Facing gender-discrimination, Ms. Ginsburg was chastised for taking a man’s spot in law school. She was the first female on the Harvard Law Review. In her final year of law school, Ms. Ginsburg transferred to Columbia Law because her husband had taken a legal position at a New York City law firm.

Upon graduation, Ruth Bader Ginsburg had trouble finding a job. However, her favorite Columbia Law professor recommended her and her alone to U.S. District Judge Edmund J. Palmieri, where she was hired as a clerk for two year. Thereafter, offers of employment from law firms were at substantially less pay than her male counterparts. Following a year abroad where she worked on the Columbia Project on International Civil Procedure, Ruth began teaching at Rutgers Law School and, later, at Columbia Law School, becoming the first female to earn tenure.

Her civil rights activism included directing the Women’s Rights Project of the American Civil Liberties Union. While at the ACLU, she argued 6 landmark cases against gender discrimination before the U.S. Supreme Court. An equal opportunity advocate, Attorney Ginsburg addressed situations where men were experiencing discrimination as well.

President Jimmy Carter appointed Judge Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in 1980. In 1990, President Bill Clinton appointed her to the U.S. Supreme Court. Justice Ginsburg wrote the majority opinion in States v. Virginia, holding that a qualified woman must be permitted admission into the Virginia Military Institute. Later, she wrote the dissent in Ledbetter v. Goodyear Tire & Rubber Co., a Title VII case denying relief to the plaintiff due to a statute of limitations issue.

Justice Ruth Bader Ginsburg believed that Congress and other legislatures should be the catalyst of social change rather than the courts.

For more about this inspirational woman, log onto https://www.oyez.org/justices/ruth_bader_ginsburg the article from which this blog is distilled.

Municipal Judge Succumbs to COVID-19

Franklin County Municipal Judge William Pollitt passed away last week from COVID-19 at the age of 72. Appointed to the Bench in 1996, Judge Pollitt served 24 years on the bench.

A former OSU linebacker and guard, Judge Pollitt was on the team in 1968 when OSU won the national championship. He also made the tackle on the opening kickoff of the Rose Bowl game in 1969.

A graduate of Capital Law School, former mayor, Greg Lashutka, hired Pollitt as an assistant prosecutor for the City Attorney’s office in 1978. Judge Pollitt later went on to become first assistant in that office. Later, Governor Voinovich appointed Judge Pollitt to the Franklin County Municipal Court, where he has served ever since. Last reelected in 2015, Judge Pollitt was prohibited from seeking another 6-year term on the bench due to a law prohibiting those over 70 years of age from seeking a judgeship. He was known for his humor, fairness and as an upbeat person. The Columbus Bar Association Judicial Poll consistently rated Judge Pollitt as one of the best Municipal judges on the Franklin County bench.

Photo credit: Franklin County Clerk of Courts

Other credit: 10TV Webstaff, Aug. 13, 2020; Columbus Dispatch, Aug. 13, 2020.

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).

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).

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.

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.

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.

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