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Disciplinary Counsel v. O'Neill9/7/2004
ocket she will want a case off her docket that day, she will not want a PSI and she will sentence the day of the plea. Bolognone should never allow victims to go home on trial dates in Judge O'Neill's courtroom. (Transcript Vol. IV -- 288-291, 298) Bolognone was "floored" when Canepa told her that Judge O'Neill blamed the prison sentence on Bolognone's refusal to waive a PSI: "It was hard for me to believe that instead of ordering a pre-sentence investigation, instead of having a hearing, instead of following the law and doing the hearing the way the legislature said we should do, instead of doing that, she would send this person to prison who she thought deserved a misdemeanor." (Transcript Vol. IV -- 219)
90. In her testimony at this hearing Judge O'Neill stated that she knew Smiley's medical condition and history before sentencing (Transcript Vol. VII -- 21-22) She believed the problem in this case was the inexperience of the prosecutor. (Transcript Vol. V --139) She testified that her reason for sentencing Smiley to prison was to utilize a "scared straight" approach and that was why she had ordered a post-sentence investigation. (Transcript Vol. VII -- 25) " I ordered a PSI, which is the post-sentencing investigation, but I didn't have any intentions at the time that I sentenced him to give him probation." (Transcript Vol. V -- 247)
91. Judge O'Neill denied making the statement Kerns heard that Smiley would have won at a jury trial. She admitted that she was at the bench having a conversation that she shouldn't have been having but she believed one of the others may have made the statement. (Transcript Vol. V -- 238-239) Judge O'Neill did tell Kerns to ask Canepa about a misdemeanor plea and suggested that she would entertain a motion to withdraw his plea as allowed by Criminal Rule 32. (Transcript Vol. V - 239-240) She admitted saying to Kerns that Smiley should have considered the consequences of having sex with a 13 year old. She differed with Canepa on her recollection of meeting the afternoon of October 5th. It was much shorter, more general and policy oriented. She denied that she said Smiley should never have been incarcerated. (Transcript Vol. V- 242-244) She denied she advised Canepa to offer a misdemeanor. (Transcript Vol. V -- 247)
92. Smiley's medications were not given by jail personnel as ordered and within a couple days he had a medical emergency at the jail and was admitted to Grant Medical Center. (Transcript Vol. IV -- 256-258) Kerns was contacted by Judge O'Neill's courtroom and attended on October 11, 2000 a hearing before Judge O'Neill. (Exhibit 228) Judge O'Neill stated that the hearing was on the Court's own motion in light of Smiley's medical emergency, reviewing that the prosecution did not waive the PSI but had no objection to probation but now the prosecution had indicated it would waive the PSI so Smiley could receive immediate probation. (Exhibit 288 p.3) Ken Mitchell who appeared on behalf of the prosecution had been contacted by Judge O'Neill and asked to handle the hearing for the state. Bolognone testified that she was notified of the hearing by a page that day and only when she reached the courtroom did she learn that Judge O'Neill had contacted Mitchell who had already agreed to waive the PSI. (Transcript Vol. IV -- 221-224)
93. VIOLATIONS CHARGED ON COUNT 1:
a) Canon 1 -- A judge shall uphold the integrity and independence of the judiciary;
b) Canon 2 -- A judge shall respect and comply with the law and shall act at all times in a manner which promotes public confidence in the judiciary;
c) Canon 3 -- A judge shall perform the duties of judicial office impartially and diligently;
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