Disciplinary Counsel v. O'NEILL

• Decision Date: 07 September 2004
• Docket Number: No. 2004-0809.,2004-0809.
• Citation: 815 NE 2d 286,103 Ohio St.3d 204
• Parties: DISCIPLINARY COUNSEL v. O'NEILL.
• Court: Ohio Supreme Court

103 Ohio St.3d 204

2004-Ohio-4704.

815 NE 2d 286

2004-Ohio-4704.

DISCIPLINARY COUNSEL v. O'NEILL.

No. 2004-0809.

Supreme Court of Ohio.

Submitted August 17, 2004.

Decided September 7, 2004.

Jonathan E. Coughlan, Disciplinary Counsel, and Joseph M. Caligiuri, Assistant Disciplinary Counsel, for relator.

Bieser, Greer & Landis, L.L.P., David C. Greer and Gretchen M. Treherne, Dayton, for respondent.

David M. McTigue, South Bend, IN, urging dismissal for amici curiae International Brotherhood of Electrical Workers Local 683, Plumbers and Pipefitters Local 189, Fraternal Order of Police Buckeye Troopers Lodge 146, International Brotherhood of Teamsters Local 413, and Central Ohio Labor Council, AFL-CIO.

Wolman & Associates and Benson A. Wolman, Columbus, urging dismissal for amici curiae Ohio Democratic Party and Franklin County Democratic Party.

Per Curiam.

{¶ 1} Respondent, Deborah P. O'Neill of Columbus, Ohio, Attorney Registration No. 0007128, a judge of the Common Pleas Court of Franklin County, was admitted to the practice of law in 1980. In a complaint filed on June 17, 2002, amended on November 19, 2002, relator, Disciplinary Counsel, charged respondent with six counts of misconduct involving numerous violations of the Code of Professional Responsibility and the Code of Judicial Conduct.

{¶ 2} Relator's allegations implicated incidents from 1997 through 2002. Count I of the complaint charged that during this period, respondent had repeatedly held improper ex parte conversations, failed to appropriately exercise judicial discretion, and failed to follow the law in a variety of ways, including unwarranted bond revocation. Count II charged that respondent had improperly refused to allow attorneys to preserve their objections on the record. Count III charged that respondent had improperly denied continuances without exercising judicial discretion. Count IV charged that respondent had repeatedly made misrepresentations to lawyers, other judges, and court personnel in the course of her duties. Count V charged respondent with acts of judicial intemperance on numerous occasions, including rudeness to judges, other court personnel, counsel, litigants, and members of the public. Finally, Count VI charged that respondent had improperly used county resources and personnel to promote her unsuccessful campaign in 2002 for a seat on the Franklin County Court of Appeals.

{¶ 3} A three-member panel of the Board of Commissioners on Grievances and Discipline heard the cause, conducting 19 days of proceedings during May, August, September, October, and November 2003, and February 2004. From the testimony of 99 witnesses, the parties' factual stipulations, 529 stipulated exhibits, and numerous other exhibits, a majority of the panel made findings of misconduct with respect to Counts I, II, IV, V, and VI of the complaint and recommended that respondent be suspended from the practice of law for two years. The dissenting panel member found misconduct only with respect to Count V and recommended a one-year suspension, conditionally stayed, and a probation period with mandatory professional counseling and mentoring. The board adopted the panel majority's findings of misconduct as to Counts I, IV, V, and VI, as well as the finding of no misconduct as to Count III, and further found no misconduct in connection with Count II. The board recommended that respondent be suspended from the practice of law for two years.

Count I

{¶ 4} The most serious misconduct established in support of Count I was that respondent has used a variety of coercive tactics to expedite dispositions in criminal cases, usually as a means to manage her docket. In three cases during the relevant time period, respondent forced pleas from defendants by threatening to revoke or actually revoking their bonds — not for acceptable reasons such as that the defendants posed flight risks or safety concerns or had failed to appear — but because the defendants wanted to exercise their rights to refuse an offered plea and go to trial. Similarly, respondent improperly revoked the defendant's bond in a fourth case because his counsel was not prepared for trial on the trial date. In a fifth case, respondent, after rejecting a misdemeanor plea offered by the parties, threatened to impose the maximum sentence if the defendant did not plead guilty as charged in the indictment and chose to exercise his right to a trial.

{¶ 5} The effect of this type of misconduct was discussed in People v. Ali (2000), 277 A.D.2d 138, 139, 717 N.Y.S.2d 114, reversed on other grounds (2001), 96 N.Y.2d 840, 729 N.Y.S.2d 434, 754 N.E.2d 193:

{¶ 6} "It is impermissibly coercive for a trial court to tell a criminal defendant that it will impose the maximum sentence if he is convicted after a trial. * * * When a court announces a blanket policy of imposing the maximum sentence for a certain type of crime, regardless of any mitigating evidence that may develop at trial, a defendant may feel he has no choice but to plead guilty. `The inescapable effect of the court's statement, under the circumstances in which the plea was taken, was to coerce defendant into pleading guilty, and we find, therefore, that the plea was not a voluntary one.' (People v. Wilson (1997), 245 A.D.2d 161, 163, 666 N.Y.S.2d 164)."

{¶ 7} Judges must routinely exercise their discretion in a myriad of ways while executing their duties in the administration of justice, and the abuse of that discretion typically generates an appeal, not disciplinary proceedings. But as the board found, judicial discretion does not extend to these strong-arm measures that respondent used to compromise defendants' right to trial. Thus, rather than classifying respondent's actions as an abuse of legitimate discretion, we agree that respondent's repeated use of the bond process and jail as leverage fell "outside any permissible discretion" and was "totally improper." For such an egregious departure from the bounds of judicial discretion, professional discipline is warranted.

{¶ 8} In another grave example of misconduct, respondent in another case failed to act as an impartial arbiter, refused to follow a court of appeals mandate, and interfered as an advocate, all in violation of the duties incumbent on a judge. In this sixth incident, a criminal defendant who had been charged with felony sex offenses and kidnapping entered an Alford plea¹ to a non-sex-offense misdemeanor, simple assault. As a term of his probation, respondent ordered the defendant into sex-offender counseling, which, unknown to counsel in the case, would require respondent to admit that he had committed a sexual assault on a victim. The defendant refused to make this admission, and he was therefore discharged from counseling programs.

{¶ 9} Respondent revoked the defendant's probation for noncompliance. On appeal, the court of appeals invalidated the sex-offender-counseling condition of the defendant's probation. Despite this order and the plea she had accepted, respondent persistently attempted on remand to enforce the condition and to treat the defendant as a sex offender. Respondent also threatened on the record that if the defendant did not comply with the ordered counseling, the prosecution would file a motion for withdrawal of the guilty plea and that she would then set the matter for trial as a sexual offense.

{¶ 10} By refusing to comply with the mandate of an appellate court, respondent violated another basic judicial duty. Moreover, because the right to withdraw a plea belongs to the defendant alone, respondent's threat of withdrawal on the state's motion was, as the board found, "legally impossible" to fulfill. The threat was also highly coercive, so much so that the defendant decided to forgo his granted probation and serve the remainder of his jail term.

{¶ 11} In addition, respondent engaged in improper ex parte communications and violated her duties to remain impartial and avoid advocacy. In a seventh case, respondent refused to accept two codefendants' pleas of no contest to misdemeanors because the pleas were offered on the date of trial, and respondent had a policy that after pretrial, defendants could only plead guilty to the charges in the indictment or go to trial. Respondent enforced her policy in this instance so vigorously that the codefendants pled guilty to the indicted felony offense, notwithstanding that both stood to be deported for their crimes. After their convictions were reversed on appeal because of the coercion, respondent, in a blatant act of advocacy, contacted the prosecutor in the underlying case and encouraged her to appeal the reversal, saying, "We're going to have to fight this."

{¶ 12} Similarly, in an eighth case, respondent accepted a defendant's plea to corruption of a minor, a fourth-degree felony, and immediately afterward directed defense counsel to solicit "a better deal" from a supervising prosecutor in the case. When the prosecutor refused, respondent attempted to prevail upon the prosecutor herself.

{¶ 13} "The responsibility of a judge is to decide matters that have been submitted to the court by the parties. The judge may not, having decided a case, advocate for or, as in this case, materially assist one party at the expense of the other. Such advocacy creates the appearance, and perhaps the reality, of partiality on the part of the judge. This, in turn, erodes public confidence in the fairness of the judiciary and undermines the faith in the judicial process that is a necessary component of republican democracy." In re Complaint Against White (2002), 264 Neb. 740, 752, 651 N.W.2d 551. Judicial advocacy through ex parte communications therefore also warrants discipline. Disciplinary Counsel v. Ferreri (2000), 88 Ohio St.3d 456, 727 N.E.2d 908.

{¶ 14} Three other examples of respondent's failure to comply with the law and act in a manner that promotes public confidence in the judiciary were also established in...