Opinion
No. 93-111-01.
Decided February 9, 1994.
Geoffrey Stern, Disciplinary Counsel, Harald F. Craig III and Alvin E. Mathews, Assistant Disciplinary Counsel, for relator Office of Disciplinary Counsel.
Gerald L. Draper, Thomas W. Hill and John J. Chester, for respondent William L. Millard.
ORDER
The Commission of Judges appointed by the Supreme Court pursuant to R.C. 2701.11 and Gov.Jud.R.III, Section 2(B), to serve in the instant case, convened on January 21, 1994. The commission considered the complaint (attached as Appendix I), all evidence submitted in the case, and the stipulations and waivers submitted by respondent, Judge William L. Millard, and relator, Geoffrey Stern, Disciplinary Counsel, on December 6, 1993, and amended on December 13, 1993. The commission accepts the stipulations and waivers, as amended (attached as Appendix II), in which respondent "admits each allegation contained in paragraphs 1 through 38 of the Complaint."
Upon deliberation, the commission orders that:
1. The sanction in this matter shall be six months' suspension without pay, effective March 5, 1994. Ninety days after the effective date of the suspension, upon application to the commission and a demonstration that respondent is in compliance with the terms of this Order, the balance of the suspension may be stayed, subject to respondent's continuing compliance with the Order.
2. Probation shall continue for the duration of respondent's term of office.
3. Respondent shall undergo appropriate professional counseling, the nature and duration of which shall be directed by the commission, with monthly reports submitted by the counselor to Disciplinary Counsel.
4. For the duration of the probationary period, respondent shall secure extensive judicial or legal education and training on a continuing basis, including, but not limited to, courses on criminal and civil trial procedure and evidence, racial and gender sensitivity issues, and judicial temperament.
5. For the duration of the probationary period, respondent shall receive continuing regular mentoring by a judge or judges appointed by the commission.
6. Respondent shall make a written apology to attorney Ellen Simon Sacks and submit a copy to the Disciplinary Counsel.
7. Respondent shall submit to Disciplinary Counsel a monthly report outlining his activities and progress under this Order, as required by the commission.
8. Disciplinary Counsel shall monitor respondent's compliance with this Order for the duration of the probationary period, and shall report any violation of the terms of this Order to the commission.
All of this is subject to the further order of the commission.
So ordered.
DONEGHY, J., Chair, DOAN, PATTON, MILLER and LEVY, JJ., concur.
CHARLES J. DONEGHY, J., of the Lucas County Court of Common Pleas; RUPERT A. DOAN, J., of the First Appellate District; JOHN T. PATTON, J., of the Eighth Appellate District; RAY G. MILLER, J., of the Muskingum County Court of Common Pleas; and LOUIS K. LEVY, J., of the Youngstown Municipal Court, sitting by appointment.
APPENDIX I SWORN COMPLAINT AND CERTIFICATE FIRST COUNT
1. Respondent was admitted to the practice of law in Ohio in October, 1958, and has served as a Judge of the Franklin County Court of Common Pleas since December, 1988. All acts complained of herein occurred in Franklin County, Ohio, during Respondent's tenure as a judge.
2. In December, 1990, the case of Roeder v. Coleman, Case No. 88CV02-809, was tried to a jury with Respondent serving as the trial judge. This civil case involved issues of medical malpractice, informed consent, and products liability.
3. For no evident reason, Respondent treated one of the six attorneys at the trial, Ellen Simon Sacks of the Cleveland law firm of Spangenberg, Shibley, Traci Lancione, with antagonism and discourtesy. Respondent raised his voice at Ms. Sacks and caused her to feel demeaned in the presence of the jury and the other attorneys. A detailed recitation of Ms. Sacks' version of the facts and circumstances concerning Respondent's actions towards Ms. Sacks in the Roeder trial are contained in the Affidavit of Bias and Prejudice of Ellen Simon Sacks, marked Exhibit A, attached hereto and hereby incorporated by reference. Respondent's response to said Exhibit A is contained in Exhibit A-1, attached hereto and hereby incorporated by reference, and Ms. Sacks' reply is contained in Exhibit A-2, attached hereto and hereby incorporated by reference.
Reporter's Note: The exhibits to the complaint have been omitted.
4. During the sixth day of trial, Respondent severely reprimanded Ms. Sacks in the presence of the jury for standing at an easel. He directed her to return to the podium, make no more notes at the easel or blackboard, and ask all further questions from the podium. Ms. Sacks asserts that during a lunch recess, she approached Respondent and expressed her concern over his anger and her difficulty in attempting to represent her client professionally and competently under the circumstances. She further asserts that Respondent told her not to worry; that his wife and secretary say the same thing; and that he merely has trouble communicating.
5. Shortly thereafter, Respondent declared a mistrial on the basis of jury confusion.
6. By reason of the foregoing, Respondent has violated the Code of Judicial Conduct (hereinafter "Code"), Canon 2A (a judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary); 3A(3) (a judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity); and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
SECOND COUNT
7. In February, 1993, two cases involving the same criminal defendant, William E. Golden, being Cases 92CR-10-5176C and 92CR-12-6713, were brought before Respondent for purposes of taking guilty pleas. Two different counsel, Robert O. Schopis and Steven Mathless, were individually representing the defendant on the two separate cases. Mr. Mathless' case involved a felony, and Mr. Schopis' case involved charges reduced to misdemeanors. Both cases charged possession of crack cocaine.
8. At the outset of the guilty plea hearing, Respondent was unaware that two separate cases were being brought to him for guilty pleas. After a few minutes of questioning on one plea, he was informed of the second case and opined to counsel that the matter could be straightened out with a little preparation. One of the counsel, Robert O. Schopis of the Office of the Franklin County Public Defender, stated, "we are prepared with all due respect," Transcript marked Exhibit B, attached hereto and hereby incorporated by reference, at 5.
9. Respondent became extremely angry at the perceived tone of counsel's statement and requested the deputy sheriff to take the counsel to a back room so he could figure out how he had acted. After denying that he was holding the counsel in contempt and demanding an apology from the counsel to the people in the courtroom (which counsel refused to give), Respondent instructed the counsel to sit down, stated at Exhibit B at 7: "THE COURT: Mr. Schopis, sit down. You are being told to sit down. You sit down right here, right now." Mr. Schopis sat down and said nothing further during the hearing.
10. Following a discussion on the record with Mr. Mathless and the defendant, Respondent proceeded to accept guilty pleas from the defendant in both cases. Given the circumstances described in paragraphs 2-9, above, Mr. Schopis was asked nothing by Respondent and said nothing on his client's behalf.
11. By reason of the foregoing, Respondent has violated Canon 3A(3) (a judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity); Canon 3A(4) (a judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law); and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
THIRD COUNT
12. On September 20, 1993, the trial of State of Ohio v. Len E. Barnes, Case No. 93CR-04-1856, commenced as a jury trial with Respondent as trial judge. After jury selection on that date, opening statements were given on the morning of September 21, 1993. Defendant was charged in the indictment with four counts of rape and eight counts of gross sexual imposition involving his eleven-year-old stepdaughter.
13. During opening statements, the State told the jury that it had reduced the rape charges to attempted rape and gross sexual imposition. Respondent called upon the State for evidence and was informed by Mr. J. Scott Saeger, the Assistant Franklin County Prosecuting Attorney, that his first witness, a teacher of the stepdaughter, was not present and available, notwithstanding messages that Mr. Saeger had left at the teacher's place of employment and with the teacher's mother-in-law the evening before. Respondent indicated that he would give Mr. Saeger twenty minutes to produce a witness; indicated that in the absence of such a witness, the case would be dismissed; and declared a recess at about 9:25 A.M.
14. During the recess, Mr. Saeger, or one of his colleagues, contacted a Franklin County Children's Services worker who had been scheduled to appear in court between 10:00 and 10:30 A.M. The worker was informed that her presence was immediately necessary, and after clearing appointments in which she was scheduled to be involved, the worker walked hurriedly from 515 South High Street to the Franklin County Hall of Justice at 369 South High Street.
15. At 9:45 A.M., Respondent, reconvened Court and asked if the State was ready. Noting that the Prosecutor did not have any witnesses, Respondent indicated that the case would be dismissed. When Mr. Saeger indicated that prejudice had attached because a jury had been seated, Respondent asserted that no one had testified. Respondent later stated, "whether that is with or without prejudice, wiser minds than mine can address," Exhibit C, attached hereto and hereby incorporated by reference, at 34.
16. The jurors were then seated, and Respondent again asked Mr. Saeger if the State had any evidence. Mr. Saeger answered, "not at this second, Your Honor," Exhibit C at 34. Respondent then discharged the jury. Within a few seconds after Respondent's dismissal of the case and discharge of the jury, the witness arrived in Courtroom 9-D, and Respondent's bailiff states that she so informed Respondent. Respondent states that he did not hear his bailiff. Mr. Saeger asserted on the record that the witness had arrived while Respondent was still dismissing the jury, Exhibit C at 36-37.
17. In explaining his decision to dismiss the case, Respondent asserted, among other things, that "the defendant has rights to a speedy trial and not to be kept on a string until such witness subsequently gets here," Exhibit C at 39.
18. On September 23, 1993, two days after the dismissal, Respondent filed a Journal Entry in the Barnes case marked Exhibit D, attached hereto and hereby incorporated by reference. In that entry, Respondent discusses Rule 807, which was not discussed in the trial transcript; states, for the first time in the case, that the declaration of a mistrial, on the Court's own motion, was intended; declares that the mistrial is without prejudice; recuses himself from the case; and indicates that the various and multiple factors contributed to the decision to declare a mistrial, sua sponte, and that those factors will not be enumerated in the entry or elsewhere. On October 21, 1993, Judge Patrick M. McGrath decided that the Journal Entry of September 23 controlled the disposition of the case.
19. By reason of the foregoing, Respondent has violated Canon 2A (a judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary); and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
FOURTH COUNT
20. In State v. Koch, Case No. 93CR-05-2766, in which the defendant was charged with drug sales, trial had been set for August, 1993, and was continued to October 28, 1993. The Entry of Continuance indicated that all discovery would be provided by August 31, 1993.
21. On or about October 19, 1993, defense counsel, Nancy K. Wonnell, contacted the Assistant Franklin County Prosecuting Attorney, Paul A. Klein, and requested by telephone the name of a confidential informant to the police on the case. Mr. Klein refused to give the name of the confidential informant to Ms. Wonnell, and on October 26, 1993, Ms. Wonnell filed a Motion to Compel the disclosure of the informant and other information. See Exhibit E, attached hereto and hereby incorporated by reference. The Certificate of Service in said Motion indicates that the motion was served at Mr. Klein's office on October 26, 1993. Nonetheless, Mr. Klein asserts that he did not receive a copy, and it is undisputed that Respondent did not receive a copy of the Motion to Compel.
22. On October 28, 1993, Mr. Klein arrived at Respondent's courtroom between 9:00 and 9:05 A.M. Ms. Wonnell arrived at about the same time, and at about 9:20 A.M., she indicated that there would be a hearing on the Motion to Compel and gave Mr. Klein a copy of that Motion.
23. Mr. Klein, indicating that this was the first time he had seen the motion, left the courtroom to go to his office and returned to the courtroom at about 9:30 A.M. Respondent called the case at about 9:40 A.M.
24. As evidenced by the trial transcript, marked Exhibit F, attached hereto and hereby incorporated by reference, Respondent, after acquainting himself with the general state of discovery in the case, began to question Mr. Klein and limit his responses to either "yes" or "no."
25. Throughout the transcript, Respondent interrupted Mr. Klein, attempted to confine Mr. Klein's answers to "yes" or "no" and refused to address case authority that Mr. Klein desired to bring to the court's attention.
26. Mr. Klein asserted that he was prepared to go forward, Exhibit F at 15. In response to that assertion, Respondent dismissed the case on the basis that "we are not going to take up any more time on the docket from anybody that is here when their case was on the docket to resolve this," Exhibit F at 16; "my reasons are that it's intolerable to try to run the docket this way, so this case is dismissed," id.; "if it's refiled, you can go through all of this in the orderly process of the administration of the matters that are on my docket," id. at 17.
27. On the disposition sheet for the case, Respondent apparently wrote "dismissed under Rule 48(B) for reasons of the record without prejudice to reindict. Case is not ready for trial." Id. at 20.
28. By reason of the foregoing, Respondent has violated Canon 3A(3) (a judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity); Canon 3A(4) (a judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law); and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
FIFTH COUNT
29. Relator re-alleges paragraphs 1 through 28, as if fully rewritten herein. Respondent has indicated, both in words and deeds, his frustration with the criminal law process and judicial work involving criminal matters. He has refused to consider criminal matters during weeks when he was responsible for his civil docket, and vice-versa. On a number of occasions, Respondent has used dismissal of criminal matters to deal with perceived lack of preparation; cases that Respondent regards as relatively trivial; or cases that Respondent feels do not merit his judicial attention. Such cases include State v. Barnes, alleged in the Third Count, above, and State v. Koch, alleged in the Fourth Count, above.
30. In State v. Shaver, Case No. 93CR-03-1170, the defendant, having been indicted for carrying a concealed weapon, appeared before Respondent to plead guilty to improperly handling a firearm in a motor vehicle. After examining the defendant and receiving from defendant's attorney the assertion that it was in his client's best interest to plead guilty to the charge, Respondent found that the plea was voluntarily, knowingly, and intelligently made and accepted the plea. Respondent was informed that defendant was a corrections officer, and notwithstanding the assertion by defense counsel that his client was not authorized to carry the firearm in question, Respondent tore up the guilty plea and stated,
"Then we took this to the grand jury and got it on the docket here and got me in the kind of mood I'm in here at seven minutes to 12:00 this morning. This case is thrown out and dismissed for improper prosecutorial conduct." Transcript at 17.
Later, Respondent asserted on the record that "the case was dismissed for improper pursuing it to this extent . . . ," Id. at 23.
31. In State v. Barnett, Case Nos. 93CR-04-2176 and 93CR-05-2992, the defendant pled guilty to the first degree misdemeanor of attempted vandalism for shattering a window at the county jail. His defense counsel indicated in open court to Respondent that it was in his client's best interest to resolve the matters by guilty pleas. Thereafter, Respondent dismissed the charge, stating "I am less than tolerant of it having been brought through the Grand Jury," Transcript at 14. When the Assistant Franklin County Prosecuting Attorney asserted that they were willing to go forward with the case for trial if the plea agreement could not be effectuated, Respondent indicated, "that case is thrown out. If you want a reason and have to have one, I could call it prosecutorial misconduct, but I prefer to call it at the volition of the court, that case is thrown out," Id. at 14-15.
32. In State v. Curry, Case No. 93CR-03-1664, defendant appeared before Respondent to plead guilty to a first degree misdemeanor of theft from the home of Dennis Landis. At one time, Mr. Landis had indicated to defendant's attorney, not the Prosecutor, that he did not desire the case to go forward. He later spoke with the Prosecutor's Office and indicated that he did not want the charges against Ms. Curry dismissed. Respondent accused Mr. Landis of attempting to enforce his individual desires on the criminal justice system. Notwithstanding the Prosecutor's assertion that Mr. Landis wanted the case to go forward and the fact that Mr. Landis was available in court, Respondent dismissed the case "without prejudice," evidently due to his perception of Mr. Landis' conduct and his opinion as to the relatively trivial nature of the case.
33. In State v. Johnson, Case No. 92CR-07-3652, Respondent declared a mistrial on his own motion, citing the case's complexity, confusion, and prejudice to both sides. The Assistant Franklin County Prosecuting Attorney asserted that a prima facie case had been offered on all essential elements and requested Respondent's reasons for granting a mistrial on his own motion. Similarly, defense counsel objected to the declaration of a mistrial, asserting that his client demanded a trial to clear his name. In open court, the defendant also stated his desire that the trial go forward. Nonetheless, Respondent declared a mistrial and discharged the jury "in the interest of justice." Simultaneously, Respondent also declared a Rule 29 dismissal in a manner that confused both counsel, Exhibit G, attached hereto and hereby incorporated by reference, at 7-14. Respondent had also simultaneously declared a mistrial and sustained a Rule 29 acquittal in State v. Bunce, discussed in Exhibit H, attached hereto and hereby incorporated by reference.
34. By reason of the foregoing, Respondent has violated Canon 2A (a judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary), and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
SIXTH COUNT
35. Relator re-alleges paragraphs 1 through 35 as if fully rewritten herein.
36. During his tenure on the bench, Respondent has often shown impatience, frustration, anger and discourtesy to attorneys and court personnel, as well as lack of accessibility in chambers and inappropriate attention to detail. Respondent has exhibited such conduct in Roeder v. Coleman (First Count, supra); State v. Golden (Second Count, supra); State v. Barnes (Third Count, supra); State v. Koch (Fourth Count, supra); State v. Shaver (Fifth Count, supra); and other cases.
37. As a result of Respondent's above-described conduct, some court personnel have avoided working with Respondent or in Courtroom 9-D to which he is assigned.
38. By reason of the foregoing, Respondent has violated Canon 3A(3) (a judge should be patient, dignified and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and should require similar conduct of lawyers, and of his staff, court officials and others subject to his direction and control); and § 2701.12(A)(1), Ohio Revised Code (violation of the Code as would result in a substantial loss of public respect for the judicial office).
WHEREFORE, Relator, Disciplinary Counsel of the Supreme Court of Ohio, has determined that probable cause exists for the filing of this Complaint and that Respondent, William L. Millard, has brought the judicial office into disrepute; and respectfully requests, pursuant to §§ 2701.11, 2701.12, Ohio Revised Code, and Rule III of the Supreme Court Rules for the Government of the Judiciary of Ohio, that Respondent, William L. Millard, be removed or suspended without pay from his judicial office.
Respectfully submitted, /s/ Geoffrey Stern GEOFFREY STERN (0013119) DISCIPLINARY COUNSEL /s/ Harald F. Craig HARALD F. CRAIG III (0027586) ASSISTANT DISCIPLINARY COUNSEL /s/ Alvin E. Mathews ALVIN E. MATHEWS (0038660) ASSISTANT DISCIPLINARY COUNSEL Office of Disciplinary Counsel of the Supreme Court of Ohio 175 S. Third Street, Suite 280 Columbus, Ohio 43215 Telephone: (614) 461-0256
OATH AND CERTIFICATE
STATE OF OHIO,
COUNTY OF FRANKLIN, ss:
Geoffrey Stern, being first duly sworn, states that he is Disciplinary Counsel of the Supreme Court of Ohio; that probable cause exists for the filing of the foregoing Complaint; and that the facts, statements and assertions in the Complaint are true to the best of his information and belief.
/s/ Geoffrey Stern GEOFFREY STERN
Sworn to before me and subscribed in my presence this 24th day of November, 1993.
/s/ Mary K. McKeeman Notary Public MARY K. McKEEMAN NOTARY PUBLIC — STATE OF OHIO MY COMMISSION EXPIRES MAY 7, 1995
APPENDIX II STIPULATIONS AND WAIVERS
Relator, Disciplinary Counsel, and Respondent, William L. Millard, do hereby state and stipulate as follows:
1. Respondent hereby waives service and notification of the Complaint herein.
2. Respondent hereby admits each allegation contained in paragraphs 1 through 38 of the Complaint herein.
3. Respondent hereby waives findings of probable cause, substantial credible evidence in support of the Complaint herein pursuant to § 2701.11, Ohio Revised Code, and Rule III of the Supreme Court Rules for the Government of the Judiciary of Ohio (Gov.Jud.R.III).
4. Relator and Respondent do each hereby waive formal hearing on the Complaint and in this matter by the five-judge commission pursuant to § 2701.11, Ohio Revised Code, and Gov.Jud.R.III. Relator and Respondent each acknowledge that said five-judge commission may elect to hold a hearing or require additional materials from Relator or Respondent or both.
5. Relator and Respondent hereby recommend that the sanction in this matter be sixty (60) days' suspension of Respondent from judicial duties without pay. Relator and Respondent each acknowledge that this recommended sanction is not binding upon the five-judge commission or the Supreme Court of Ohio and that said recommended sanction may be increased or decreased by the recommendation of said five-judge commission and the final decision of the Supreme Court of Ohio.
6. Relator and Respondent have agreed that Respondent will pursue an approved program of meeting with active or retired judges for five (5) hours per calendar month for a period of two (2) years commencing January 1, 1994. Respondent shall report to Relator, on a monthly basis, the identity of the person(s) who met with Respondent, the date and duration of the meeting(s), and the general subject matter of the meeting(s).
7. Respondent has volunteered to transfer his criminal docket, except for capital cases, to Judge Tommy L. Thompson in exchange for Judge Thompson's transfer of his civil docket to Respondent, effective January 1, 1994, with court approvals and for a duration of not less than six (6) months.
8. Relator acknowledges that Respondent and his counsel have cooperated with the Relator in his investigation of this matter.
IN WITNESS WHEREOF, Relator, Respondent, and counsel for Respondent have signed these stipulations and waivers this 24th day of November, 1993.
/s/ Geoffrey Stern GEOFFREY STERN (0013119) Disciplinary Counsel /s/ Harald F. Craig HARALD F. CRAIG, III (0027586) Assistant Disciplinary Counsel /s/ Alvin E. Mathews ALVIN E. MATHEWS (0038660) Assistant Disciplinary Counsel /s/ William L. Millard WILLIAM L. MILLARD (0022057) Respondent /s/ Gerald L. Draper GERALD L. DRAPER (0022019) Counsel for Respondent /s/ Thomas W. Hill THOMAS W. HILL (012182) Counsel for Respondent /s/ John J. Chester JOHN J. CHESTER (0021956) Counsel for Respondent