Crossing a judge
I pissed off a judge once.
Long time ago -- close to 30 years now.
I wrote something in an appellate brief about the "intellectual
bankruptcy" of his position. Cute phrase,
huh?
The judge didn't think so.
He found out about it, and suffice it to say that payback was a
bitch. And although he was theoretically
only one of thirty-four judges, word gets around, and it was quite a while
before I recovered from the damage. I
always wondered what it would be like if you were an attorney practicing in a
small county that had only one or two judges.
Bright was a public defender in Gallia County, where David
Evans served as the lone judge of the general division. Bright worked out a plea in a criminal case,
but Evans rejected it when the client changed her mind twice during the course
of the plea hearing. He refused to
accept it again three days later, at which point Bright wrote an 18-page motion
characterizing Evans' refusal to accept the plea as "an abuse of discretion"
and "unreasonable and/or arbitrary and/or unconscionable." (The latter terms are, of course, the
definition of an abuse of discretion.) Bright
also ventured criticism of some of Evan's other practices, like his use of
"drop-date" dates for pleas.
Evans wasn't pleased.
Describing Bright's motion as "scathing" and claiming that it showed
Bright's "bias toward and contempt for the court," Evans removed Bright from
the case. The reasoning for that is
somewhat convoluted. The judge in his journal
entry conceded that Bright's "attitude toward the Court as expressed in the
instant motion" wasn't professional misconduct or even contemptuous. Nonetheless, "it is certainly not acceptable
behavior," and it
created conflict with the Court
whereby in this case or for that matter any other case in the future, when [Bright]
does not agree with a decision or ruling by the Court, instead of being
critical by accusation of being arbitrary, unreasonable, unconscionable or of
abusing discretion, he simply may accuse the court of being bias [sic] or
prejudice [sic] as it relates to him.
Evans noted that he had an obligation to avoid any
appearance of impropriety, bias, or prejudice, and concluded that Bright's
action
compromises [sic] the Court's
ability to avoid any appearance of bias [or] prejudice, or to be fair and
impartial as it relates to Defense Counsel regardless [of] how hard it tries or
what strides it makes toward guaranteeing that there would be no bias,
prejudice and that it would be fair and impartial.
In other words, because Bright wrote a motion that hurt the
judge's feelings, the judge couldn't be sure that he wouldn't be biased toward
Bright, so the only remedy to that was removing Bright as counsel.
And not just in that case:
within the next day or so, Evans filed entries removing Bright as
assigned counsel in 63 criminal cases -- Bright's entire caseload. Within the month, the public defender's
office fired Bright: it didn't make much
sense for them to pay him to handle felony cases in Gallia County Common Pleas
Court, when the only judge in Gallia County Common wouldn't let him handle
them.
Evans filed a complaint with the disciplinary counsel about
Bright's motion, but that went nowhere.
A complaint against Evans did, and Tuesday the Supreme Court weighed in
with its decision in Ohio State Bar v. Evans. The
issue was not whether Evans was wrong; in fact, he and the disciplinary board
stipulated the Evan's conduct violated Judicial Conduct Rule 2.11, which
requires a judge to disqualify himself
"in any proceeding in which the judge's impartiality might reasonably be
questioned, including circumstances in which a judge has a personal bias or
prejudice concerning a party or a party's counsel." In short, instead of removing Bright, the
judge should have disqualified himself.
The only remaining issue was the sanction.
It may surprise you, but judges are disciplined with some
frequency, and so the court rummaged through its previous cases to see what had
happened to the judges there. It may not
surprise you that the answer was, not much:
with one exception, all of the cases cited by the court involved stayed
suspensions of six months to a year. The
only exception was Disciplinary Counsel
v. Campbell, where the judge had to commit 14 separate disciplinary
violations in order to earn an actual six-month suspension. The court finds that "a significant
aggravating factor is present here: harm
to the victims." And so, it concludes, a
"midrange sanction" is appropriate: a
twelve-month suspension, all stayed.
Well, at least somebody still has a job.
Comments