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

Gaul, Disciplinary Counsel v.
127 Ohio St.3d 16, 2010-Ohio-4831. Decided 10/7/2010.
Case Summaries- 94
Respondent, a common pleas court judge since 1991, made prejudicial and unnecessary comments toward
a defendant both before and after the judge decided to recuse himself from the case, and he misused an
Amber Alert and the media‘s responsiveness to the alert. All of respondent‘s misconduct occurred during
a single criminal trial in which the defendant was accused of burglary and assault of an elderly woman
and her caregiver. On the third day of trial, the judge was informed that the detective who was to
transfer the women to trial could not locate them. Respondent was concerned for the elderly woman‘s
safety based upon his suspicions that the defendant was trying to prevent the woman from testifying and
his review of the dockets from the defendant‘s past criminal cases. He knew that the caregiver had
admitted that she had a personal relationship with the defendant and had been smoking crack with him on
the day of the crimes. He placed his concerns on the record. He granted the states‘ motion for a one- day
continuance to locate the witnesses and he issued a bench warrant for the caregiver. The next morning
at a meeting with attorneys in chambers, respondent learned that a detective was unable to find the
women and that the prosecutor wanted to dismiss the case. According to the defense counsel respondent
was irate that the prosecutor wanted to dismiss and the judge stated to the prosecutor: ―[W]e are all on the
same team.‖ Respondent informed them he intended to recuse himself when he took the bench.
Respondent told his bailiff he was issuing an amber alert to locate the elderly witness and he asked the
bailiff to notify the media. Before respondent went on the record, he was notified that the elderly woman
had been located. When he went on the record, in the presence of the local media who had come to the
courtroom, he said he asked the media to be here because he thought they were going to need their help
and he still thought that needed their help to find witnesses in the case. He stated he wanted to make a
record. He said that the elderly woman allegedly had her hip broken by the defendant and he outlined the
basic facts of the case and that the caregiver had been smoking crack and drinking with the defendant
when the fight broke out over money and the defendant assaulted the women. Among other things he
stated that he bet his life on the fact that the defendant was involve in obstruction of justice and a
technical kidnapping. He stated that he thought it important for him to step out of his role as judge and
become an advocate to protect the elderly woman. He asked if the state would like to move to
continue the case until the caretaker was incarcerated. The judge explained he would recuse himself and
the defendant would stay in jail he challenged law enforcement to find the caregiver and have her
incarcerated and to determine whether the defendant was involved in the disappearance of the elderly
woman. He said he suspected that they would find that out because he had the defendant‘s rap sheet right
here. The judge denied defense counsel‘s motion to dismiss the case with prejudice. He declared a
mistrial with respect to jury members who had been selected. He repeated his intention to recuse and then
returned to his chambers with members of the media and made further comments. The board adopted the
panel‘s findings of violations of former Canons 2, 3(B)(5) and 3(B)(9) and Prof.Cond.R. 8.4(d).
Respondent presented several objections to the court, all of which were overruled. Respondent objected
because the panel did not admit expert evidence about how to interpret the Code of Judicial Conduct; but
the court found that the panel was capable of interpreting and applying the rules without an expert‘s
opinion. The court cited Karto (2002). Respondent objected because the panel refused to admit
jailhouse telephone conversations between the caregiver and defendant and he was unable to introduce all
relevant evidence of the context in which he made his decisions, but the court found that the respondent
was not even award the recordings existed at the time of the trial. Respondent objected to the violation
of Canon 2, claiming he had a legally sufficient basis for making the conclusion that the defendant
tampered with the witness and the elderly woman was in danger, thus justifying his actions. The court
stated that although he may have appropriately recused himself due to his suspicions about the defendant,
the recusal did not excuse the highly prejudicial and unnecessary comments directed toward the
defendant before and after recusal. Further, he did not have evidence before him or hold a hearing
before announcing his judicial findings on the record. Medley (2004). ―A finding of fact must be based
on evidence; to find that contemptuous conduct has occurred outside the present of the court, the court
must hold a hearing and analyze record evidence.‖ Respondent used the Amber Alert system to achieve