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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.

Robert Bright found out the answer to that question. 

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. EvansThe 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.


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