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Gone, Baby, Gone

Maybe 2009 will be a better year than 2008 for Portage County Municipal Judge John Plough.  Then again, 2007 wasn't any great shakes, either.  That's when Portage Common Pleas Administrative Judge Laurie Pittman filed a complaint against Plough with the Ohio Disciplinary Counsel, claiming that he was making "a mockery of justice."  That complaint -- which alleged that Plough intimidates defendants who appear pro se, keeps incomplete and inaccurate trial records, hands down inappropriate sentences, and abuses speedy trial rights -- is still pending.   The last few weeks might have provided some additional ammunition.

That part about keeping "incomplete and inaccurate trial records"?  Like most municipal judges, Plough uses a digital tape recorder, rather than a court reporter, to record the proceedings in his court.  Pittman alleged that he "turns [the recording device] on and off at his discretion."  There's some basis for that allegation, apparently; a Plain Dealer article reporting Pittman's complaint back then noted that "court stenographers who work for the other two municipal judges are reluctant to transcribe [Plough's] recordings or certify their accuracy because there are so many apparent gaps."

That problem came to a head a couple of weeks ago in State v. Belinger.  Belinger had been arrested for drunk driving in February of 2007, and the case had been assigned to Plough.  On May 14, 2007, Plough denied most of Belinger's motion to suppress.  Belinger entered a no contest plea, and two days later he appealed.   Normally, an appellant has 40 days from the time a case is appealed to provide the appellate court with the record of what happened in the lower court, including the transcripts of any hearings.  In Belinger's case, that never happened; Plough never produced a full record of the hearing, and despite two remands, refused the appellate court's order to sign a statement prepared by the parties describing what had happened in the hearing.

In the almost three years I've been doing this blog, I've read a lot of court opinions, but never one so scathing as that handed down by the 11th District in Belinger's case two weeks back.  The court began by noting that "there have been numerous cases appealed from this municipal court where the lack of a record appears to be at issue" which "raises serious cause for concern," then dropped any pretense of subtlety:

Despite the concerns this court has previously raised, the trial judge has obviously done nothing to improve his system of recording the court's proceedings for appeal.  To add insult to injury, in the case sub judice, he has failed to follow this court's orders that he settle and approve an App.R. 9(C) statement of evidence.  The only logical conclusion that can be drawn is that the trial court feels it can ignore this court's orders.

Holding that Plough's "refusal" to provide a trial record "interfered with appellant's right to an appeal and this court's administration of justice," the court reversed Belinger's conviction and remanded the case with intructions to vacate the conviction and enter a judgment of acquittal.  The court expressed "great reluctance" in doing so, but

in light of the flagrant violations, if not contempt, by the trial court of our orders, resulting in the violation of appellant's right to a fair review on appeal, we have no alternative.

And if one lump of coal wasn't enough for Plough's stocking, the 11th District added another a week later, in State v. Jones.  Jones was an assistant public defender in Portage County, and back in August of 2007 represented a defendant charged with misdemeanor assault in Plough's courtroom.  Jones was nonplussed to find in his first appearance on the matter that the case was scheduled for trial, especially since he'd been appointed only the day before.  Plough brushed off Jones' claims that he couldn't effectively represent his client with such a short time to prepare, and gave Jones the choice of proceeding or being cited for contempt.  Jones chose Door B, and spent five hours in jail before making bond.  Plough subsequently found him in contempt.

In reversing that last week, the 11th District had no difficulty concluding that

Under these circumstances, effective assistance and ethical compliance were impossible as appellant was not permitted sufficient time to conduct a satisfactory investigation as required by Disciplinary Rules 6-101 and 7-101 of the Code of Professional Responsibility, Rule 1.1 of the Ohio Rules of Professional Conduct, and the Sixth Amendment of the United States Constitution. It would have been unethical for appellant to proceed with trial as any attempt at rendering effective assistance would have been futile. Appellant properly refused to put his client's constitutional rights at risk by proceeding to trial unprepared.

This wasn't the first time this had happened; back in 2007, in State v. Driscoll, Plough had been reversed for refusing to continue a trial in which the public defender's office had only a day to prepare for trial.

I'm not sure how long it's going to take the Disciplinary Counsel to complete its investigation, but I hope it's quicker than the time it took Plough to provide the record in Belinger's case.  He's a bad judge, and he needs to be gone.  If it's unethical to represent a client without having had adequate time to prepare for trial, isn't it unethical for a judge to force a lawyer into that situation?

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