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Disciplinary Counsel v. O'Neill9/7/2004
ent had a policy that after pretrial, defendants could only plead guilty to the charges in the indictment or go to trial. Respondent enforced her policy in this instance so vigorously that the codefendants pled guilty to the indicted felony offense, notwithstanding that both stood to be deported for their crimes. After their convictions were reversed on appeal because of the coercion, respondent, in a blatant act of advocacy, contacted the prosecutor in the underlying case and encouraged her to appeal the reversal, saying, "We're going to have to fight this."
{ } Similarly, in an eighth case, respondent accepted a defendant's plea to corruption of a minor, a fourth-degree felony, and immediately afterward directed defense counsel to solicit "a better deal" from a supervising prosecutor in the case. When the prosecutor refused, respondent attempted to prevail upon the prosecutor herself.
{ } "The responsibility of a judge is to decide matters that have been submitted to the court by the parties. The judge may not, having decided a case, advocate for or, as in this case, materially assist one party at the expense of the other. Such advocacy creates the appearance, and perhaps the reality, of partiality on the part of the judge. This, in turn, erodes public confidence in the fairness of the judiciary and undermines the faith in the judicial process that is a necessary component of republican democracy." In re Complaint Against White (2002), 264 Neb. 740, 752, 651 N.W.2d 551. Judicial advocacy through ex parte communications therefore also warrants discipline. Disciplinary Counsel v. Ferreri (2000), 88 Ohio St.3d 456, 727 N.E.2d 908.
{ } Three other examples of respondent's failure to comply with the law and act in a manner that promotes public confidence in the judiciary were also established in support of Count I. In addition to her advocacy in the eighth case, respondent further refused the parties' request for a presentencing investigation that might have justified a community-control sanction instead of prison for the defendant - an 18-year-old nearly homebound because of a liver transplant. Instead, respondent sentenced the defendant to prison and thereafter misrepresented her reasons for doing so.
{ } In a subsequent discussion with a supervising prosecutor in the case, respondent initially blamed the harsh sentence on the assistant prosecutor who had appeared, claiming that by refusing to waive the presentence investigation, the assistant prosecutor had somehow forced respondent under sentencing statutes to send the defendant to jail. That explanation was false. To avoid the necessity of a prison term, which respondent herself had said was not warranted, respondent had only to order a presentence report as requested. See R.C. 2951.03, requiring a presentence investigation before a community-control sanction may be considered. Moreover, during the disciplinary proceedings, respondent initially explained that she had already known what a presentence investigation would have revealed. And later she testified before the panel that she had wanted to employ a "scared straight" approach with this defendant and would not have considered probation. These facts confirm for us the board's finding that, for whatever purpose, respondent misrepresented her reasoning for sentencing this defendant.
{ } In a ninth case, a defendant accepted a plea bargain. On the day before sentencing, his counsel asked respondent (with the prosecution's consent to the ex parte communication) to order a presentence investigation and to continue the defendant's bond pending the investigation. Respondent agreed. The next day, defense counsel appeared for the 9:00 a.m. hearing, but the def
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