disciplinary handbook: volume v - Supreme Court - State of Ohio

Stuard, Becker, and Bailey, Disciplinary Counsel v.
121 Ohio St.3d 29, 2009-Ohio-261. Decided 1/29/2009.
Case Summaries- 325
Respondents, Judge Stuard of the Trumbull County Court of Common Pleas and Assistant Prosecutor
Becker, communicated ex parte in the writing of a sentencing order by Becker on behalf of the judge,
warranting a public reprimand for both. Respondent Bailey, also an assistant prosecutor, merely reviewed
the sentencing order and did not participate in the ex parte communication, warranting dismissal of the
charges against him. In May and June 2003, Judge Stuard presided over the capital murder trial of
Donna Roberts. Becker and Bailey represented the state. A jury found Roberts guilty of two
counts of aggravated murder, among other crimes, and recommended a sentence of death. On June
18, 2003, between the penalty-phase hearing and the sentencing hearing, Judge Stuard communicated
exparte 4 times with Becker. Judge Stuard asked Becker and Becker agreed to prepare a sentencing
opinion. Judge Stuard gave Becker two pages of the judge‘s notes weighing the aggravating and
mitigating factors in deciding the death sentence was appropriate. Because the notes did not relate the
history or facts of the Roberts case, Judge Stuard instructed Becker to refer to the sentencing opinion
in the companion case of Nathaniel Jackson, Robert‘s codefendant. The second ex parte
communication occurred the next day, when Judge Stuard found a 17-page draft of the sentencing
opinion on his desk. Judge Stuard reviewed the draft, noted one or more corrections to be made, and
then made his third ex parte communication by asking Becker to make the corrections. Becker made the
corrections and incorporated Bailey‘s editorial suggestions. The fourth communication occurred when
the judge received the corrected version of what became his sentencing opinion. Judge Stuard had
an informal practice of enlisting prosecutorial assistance in drafting journal entries in criminal cases. He
used this process in the Roberts case; however, he failed to include defense counsel in the process.
Defense counsel discovered what had happened when they noticed that one of the prosecutors seemed to
be silently ―reading along‖ and turning pages in unison with Judge Stuard as he read his opinion from
the bench. Defense counsel objected. In a sidebar discussion, Judge Stuard acknowledged that he gave
his notes to and instructed the prosecution to draft the sentencing order. Defense counsel then challenged
the process by which the court had prepared Robert‘s death sentence order as an impermissible
collaboration and ex parte communication. On appeal, the Supreme Court held that ―the court committed
prejudicial error by delegating responsibility for the content and analysis of its sentencing opinion.‖
The Court vacated Roberts‘ death sentence and remanded the cause with instructions for Judge Stuard to
personally review and evaluate the appropriateness of the death penalty. The board adopted the
panel‘s findings and recommendations. The board found Judge Stuard violated Canon 2 and 3(B)(7)
of the Code of Judicial Conduct and Becker violated DR 1-102(A)(5) and DR 7-110(B) of the
Code of Professional Responsibility. The board recommended dismissal of all charges against Bailey,
as he did not exchange any information about the merits of the case with the judge. The Supreme
Court agreed. The board found no aggravating factors present. In mitigation, both Judge Stuard and
Becker lacked a prior disciplinary record, cooperated with the disciplinary process, and established good
character and reputation through letters of recommendation and testimony. BCGD Proc.Reg.
10(B)(2)(a), (d), and (e). The board recommended public reprimands for both. The Supreme Court
agreed and so ordered.
Rules Violated: (Stuard) Code of Judicial Conduct Canons 2 and 3(B)(7); (Becker) DR 1-102(A)(5),
DR 7-110(B); (Bailey) NONE
Aggravation: NONE
Mitigation: (a), (d), (e) (Stuard & Becker)
Prior Discipline: NO Procedure/ Process Issues: NO Criminal Conduct: NO
Public Official: YES (x3) Sanction: Public Reprimand (Stuard & Becker); Dismissal (Bailey)